vERS/a 


<Til30NVS0^ 


%l3AINn-3V^ 


^UIBRARYQc.        ^UIBRARYtf/ 


^OJITVD-JO^       ^/OJIWJ-JO^ 


\\\E-UNIVEW/a 


^TiiaONV-SOV^ 


v^VOSANCElfj> 


^0KAIIF(%.        ^OF-CALIFORfc, 


"fysaaAiM-awv**        *&Anvaaiii^      y0Aavaan#- 


^UIBRARYfl/ 


^UIBRARY^r 


WtfUNIVERS//, 


^/OJIIVDJO^      ^fOJIWO-JO^        ^TJl3DNY-S0V^ 


v^lOSANCElfj> 


-< 

%3AINIl-3\\VN 


^OKALIFOR^      ^OFCALIFOfc^  ^WEUNIVER^ 


y<?Aavaain^ 


^Aavaain^7 


<Til33NY-SOV^ 


^AOSANCElfj> 


%a3AINH3W* 


^E-UNIVERto 


^lOSANGEtfj> 


<TJl3DNYS0^        "%!3AIN(V3WV 


^UIBRARY^ 


^ILIBRARY^ 


%OJHV0-JO^ 


^E-UNIVERS/a 


<TJi30NV-S(- 


^lOS-ANGElfju 


"^/MAINfUtW 


^OF-CALIFOflfc, 


^OF-CAUFOftto 


y0Aavaaii#- 


y0Aavaan^ 


^UIBRARYQr         ^UIBRARYQr 


tyoinmti**     ^ojiivj-jo^ 


\WMJNIVERty> 


-  ^ 


^clOS-ANCElfj^ 


%a3AINH3HV 


^OFCAIIFO%,        ^OF-CALIFOft^ 
t7t^   1  ^     ^   \// 


■S 


VERS//, 


^lOSANCELfj> 


:r% 


vjclOSANCflfj^ 


"%3AINiT3\W 


^•HBRARYQc. 


^ILIBRARYO^ 


tyOJUVJ-JO^ 


^WE  UNIVERJT//V 


<Til30NVSOV^ 


v^lOSANCflf^ 

»^  mi  "0" 


^OFCAUFO/?^ 


^0FCAIIF0% 


^/mainih^      ^AHvaaiH^7 


^omw^P 


AWEUNIVERS/a 


tY^         ^vUlBRARYOc 


I 


? 


JO^      ^0JllV3JO^ 


^UJNIVERS/A 


.^•lOSANGElfr^. 


<Til30NVS0l^        %a3AIN(l-3WV 


0%        .^OFCAUF0%  <\MEUNIVERS//, 


<Til30NYS0^ 


^lOSANGElfj> 


"%3AINfl3ttV 


^UIBRARYQ^ 


^/OJIIVDJO^ 


^OF-CALIFOfi^ 


■^AavaaiH^ 


R% 


^vlOSANGFlfj> 


^t-LIBRARYQc 


^•LiBRARYtfr 


%a3AINn-3WV>>         ^OJITVJJO^ 


^OJITVDJO^ 


AWEUNIVER5//) 


^UONVSOI^ 


R% 


v^lOSANCELfj> 

o 


^0FCALIF(% 


^OFCAIIFO/?^ 


"^amainii^       ^amih^- 


^Awaan^ 


.^EDNIVERS//, 


"^JUDNVSO^ 


!YQ^       ^UiBRARY^ 


*■ 


JO^       ^/OJIIVJJO^ 


AWEUNIVER^/i 


^vlOS-ANCElfjv. 

§  ^ — *3 


^JlJDNY-SOl^ 


%i3AiNfi  3t*^ 


^ILIBRARYQ^ 


^ojnv3jov 


^       ^-OF-CALIFO^ 


,^WE  •UNIVERSE 


^clOS-ANCElfj^ 


yi  ivp)t  ti=^i  iYTt-1 


.^OFCALIFC% 


AN  INTRODUCTION 


TO    THE 


CONSTITUTIONAL    LAW 


UNITED    STATES 


ESPECIALLY  DESIGNED  FOR  STUDENTS,  GENERAL 
AND   PROFESSIONAL. 


JOHN   NORTON  JOMEROY,   LL.D., 

AUTHOR   OP    "AN    INTRODUCTION   TO   MUNICIPAL   LAW." 


Seventh  Edition,  revised  and  enlarged. 


BOSTON: 
HOUGHTON,  MIFFLIN  AND  COMPANY. 

©be  BuiersOie  Press,  dDambriiffe. 
1883. 


Entered  according  to  Act  of  Congress,  in  the  year  1868,  by 

John  Norton  Pomeeoy, 

in  the  CJerk's  Office  of  the  District  Court  for  the  Southern  District  of  New  York. 


PREFACE  TO  THE  THIRD  EDITION. 


N 


In  preparing  the  work  of  which  the  third  edition  is  now 
offered  to  the  public,  the  principal  purpose  of  the  author  was 
to  furnish  for  general  readers,  for  colleges,  law  schools,  and 
other  higher  seminaries,  and  for  the  legal  profession,  a  book 
adapted  to  their  present  wants  and  based  upon  the  principles 
of  constitutional  interpretation  which  have  been  settled  by 
the  civil  war  and  by  the  political  events  that  followed  it. 
Although,  as  the  name  indicates,  it  is  an  Introduction  and  does 
not  purport  to  be  an  absolutely  exhaustive  treatise,  yet  all  the 
purely  constitutional  questions  which  have  at  any  time  been 
passed  upon  by  the  highest  national  tribunal,  are  discussed  and 
the  results  thereof  are  stated.  In  respect  to  some  of  these 
topics,  where  there  has  been  a  conflict  of  opinion  between  the 
federal  and  the  state  courts,  or  where  the  relative  powers  of  the 
national  and  state  governments  have  been  somewhat  undefined 
and  uncertain,  the  treatment  has  been  designedly  made  more 
full  and  minute.  Among  the  more  important  of  these  topics 
are  the  powers  of  taxing  and  of  regulating  commerce,  the  mil- 
itary powers,  the  executive  powers,  the  rights  of  citizenship, 
and  state  laws  impairing  the  obligation  of  contracts.  The  work 
is  thus  intended  for  use  as  a  text-book  by  the  courts  and  the 
bar. 

In  determining  the  principles  which  underlie  all  others,  in 
reference  to  the  nature  of  the  United  States  as  a  body  politic 
and  of  its  Constitution,  an  attempt  has  been  made  to  construct 
a  harmonious  system  of  interpretation  founded,  not  upon  theo- 
retical and  a  priori  speculations,  but  upon  historical  facts,  which 
shall  at  the  same  time  recognize  and  uphold  the  nationality 
and  absolute  sovereignty  of  the  United  States  and  the  suprem- 
acy of  its  government,  and  also  maintain  the  essential  exist- 


748900 


U  PREFACE   TO   THE   THIRD    EDITION. 

ence  and  rights  of  the  several  states  as  necessary  elements  of 
the  political  order  established  by  the  one  People  in  the  Consti- 
tution which  they  adopted.  While,  therefore,  the  whole  civil 
structure,  federal  and  state,  is  made  to  rest  upon  the  nation- 
ality and  sovereignty  of  the  United  States,  the  construction 
that  is  advocated  guards  with  equal  care  against  any  tendencies 
towards  an  undue  centralization  of  power,  and  upholds  the 
sacred  principle  of  local  self-government  as  the  very  ground- 
work of  all  civil  and  political  liberty. 

The  text  of  the  present  edition  has  been  carefully  revised 
and  corrected  ;  and  whatever  errors  of  fact  or  inaccuracies  of 
statement  had  been  discovered  have  been  removed.  An  Appen- 
dix has  also  been  added,  which  contains  an  abstract  of  all  the 
decisions  involving  an  interpretation  of  the  Constitution,  ren- 
dered by  the  Supreme  Court  of  the  United  States  since  the 
publication  of  the  first  edition.  The  Public  Law  of  the  land 
authoritatively  declared  by  the  highest  tribunal,  is  thus  pre- 
sented as  it  stands  at  the  present  day.  The  subject  matter  of 
this  Appendix  is  arranged  in  an  order  conforming  to  that  pur- 
sued in  the  body  of  the  work,  with  appropriate  subdivisions 
and  headings,  so  that  it  can  be  easily  referred  to  in  connection 
with  the  discussions  found  in  the  original  text.  The  additions 
thus  made  embrace  many  subjects  of  the  highest  theoretical 
and  practical  importance  ;  among  others,  the  nature  of  the 
Federal  Union  and  its  relations  with  the  States,  the  status  of 
citizenship  with  the  rights  and  immunities  of  citizens,  the  inter- 
pretation of  the  Xlllth,  XlVth,  and  XVth  amendments,  the 
regulation  of  inter-state  commerce,  the  extent  and  limits  of  the 
national  and  the  state  powers  of  taxation,  —  and  the  questions 
thus  raised  and  determined,  equal  in  magnitude  and  in  their 
far-reaching  effect  any  that  were  ever  before  passed  upon  by 
the  national  court  of  ultimate  resort. 

J.  N.  P. 

August,  1875. 


TABLE  OF   CONTENTS. 


INTRODUCTORY  CHAPTER. 

Law  divided  into  Public,  and  Private  •         •         . 

What  included  in  Public  Law 

Austin's  and  Savigny's  classification  .         .         •         . 

Falck's  classification      .  

What  included  in  Private  Law 

Public  Law  divided  into  Political  and  International 
Elementary  idea  of  the  "  State  "  and  of  "  Sovereignty  " 
What  included  in  Political  Law    ..... 
Political  Law  divided  into  General,  and  Special 
Object  of  this  treatise ;  political  law  of  the  United  States 
Methods  of  its  study  and  interpretation    .... 
Importance  of  the  study  to  American  lawyers 

"            "                 "                  citizens  . 
Divisions  of  this  treatise 


SEcnoir 

I 

2-12 

2 

3-12 

5 

6 

7-9 

10-12 

12 

13-15 

16-21 

22 

23 

24 


PART  FIRST. 

WHAT  IS  THE  CONSTITUTION,  AND  BT  WHOM  WAS  IT  CREATED  : 
THE  ESSENTIAL  NATURE  OF  THE  ORGANIC  LAW,  AND  OP  THE 
BODY    POLITIC    WHICH    LIES    BEHIND    IT. 

CHAPTER  I. 

STATEMENT  OF  THEORIES  ;   NATIONALITY  OF  THE   UNITED   STATES. 

mportance  of  this  subject 25,  26 


SECTION  I.— THEORIES  WHICH  HAVE  BEEN  PROPOSED  AND  ADVOCATED. 

Three  theories  proposed 27 


I.  The  complete  National  Theory 
II.     "  "  State  Sovereignty  Theory 

III.     "     partial  National  Theory  . 


.  28,29 

30,31 

.  32-34 


iv  TABLE   OF   CONTENTS. 

SECTION"  II.  — MEANING  OF  "NATION,"  AND  OF  POLITICAL  SOVEREIGNTY. 

SIOTIOH 

Course  of  investigation  to  be  pursued            .....  35* 

"Nation"  and  "Sovereignty"  imply  each  other  ....  36 
Distinction  between  "Nation"  and  "Government"  .  .  .  87-39 
Definition  of  " Nation "  and  "Sovereignty" 40-42 

SECTION  m.—  THE    PRINCIPAL   PROPOSITION    IN    REGARD   TO   THE    NATURE   OV 

THE  CONSTITUTION,  AND  THE  NATIONALITY  OF  THE  UNITED  STATES. 

The  United  States  is  a  nation  and  is  sovereign     ....  42 

The  separate  states  are  not  nations  and  not  sovereign  ...  43 
Case  of  a  revolution  not  included  ......  44 


CHAPTER  IT. 

HISTORICAL  SKETCH  OF   THE  POLITICAL   MOVEMENTS   WHICH   TERMINATED   IN 
THE   ADOPTION  OF   THE    CONSTITUTION. 

SECTION  I.— PERIOD  PRIOR  TO  THE  CONFEDERATION 
Importance  of  this  inquiry 


The  nation  does  not  date  from  the  present  Constitution 

Condition  of  the  colonies  prior  to  the  revolt 

Nature  of  the  revolt 

"       "    "    first  Continental  Congress 

"       "    "    second         "  "  ... 

Declaration  of  Independence,  its  authors,  and  its  effects 
When  the  nation  began        ...... 

Sovereign  states  cannot  limit  their  sovereignty 


45 
46 
47 
48 
49 
50 

50-53 
54 

55,56 


Opinion  of  modern  publicists  in  reference  to  last  proposition         .  55 

SECTION  II.  — PERIOD  OF  THE  CONFEDERATION 

Idea  of  nationality  not  formally  adopted 57 

Effect  of  local  and  state  influences        ......  58 

Adoption  of  Articles  of  Confederation       ......         59 

Genera]  description  of  these  articles,  and  of  the  movements  which 

led  to  them 60-63 

Attract  of  Articles  of  Confederation 64,65 

Articles  of  Confederation  not  a  fundamental  law  ...  66 

Controlling  ideas  embodied  in  them  ......  67-73 

1.  No  United  States  Citizenship        .         .  '       .         .         .  67 

Formative  elements  were  states        .         .         .         .         .         .         .         68 

II.  Articles  acted  upon  States  and  not  Individuals      .         .  69 

III.  Government  had  no  power  to  compel  obedience        .         .         70 
Congress  was  the  sole  department  of  the  government  ...  71 

IV.  Limited  extent  of  the  powers  granted  to  the  Congress         .   72,  73 
Consequences  of  this  form  of  government 73-75 


TABLE   OF    CONTENTS.  V 

SECTION  III. —PROCEEDINGS  WHICH   DIRECTLY  LED  TO   THE  ADOPTION  OF  TIIE 

CONSTITUTION. 

SECTION 

A  remedy  necessary  ;  an  amendment  to  the  Articles  of  Confedera- 
tion contemplated              ........  76 

First  Convention  in  1786     ........  77 

Call  of  Convention  by  Congress,  to  amend  Articles  of  Confederation  78 
Meeting  of  Convention  in  1787  ;  did  not  do  what  they  were  called 

to  do 79 

Convention  of  a  body  of  volunteers           ....  80 

Their  final  action          .........  81 

Meaning  of  these  proceedings;  nature  of  the  acts  of  the  state  gov- 
ernments in  submitting  the  Constitution  to  the  people       .  82 
Contest  in  relation  to  adoption  of  the  Constitution        ...  83 
Ratification  of  the  Constitution 84 


CHAPTER   III. 

THE  NATIONAL  ATTRIBUTES  INVOLVED   IN  THE   PROVISIONS  OF  THE    CONSTITUTION. 

SECTION  I. —DISTINCTION  BETWEEN  THE  GOVERNMENT  AND  THE  NATION. 

The  people,  as  a  collective  unit,  are  the  nation,  as  distinct  from  the 

government      ..........  85,  86 

The  theory  of  the  government  is  involved  in  this  proposition        .  87 

Illustrations  from  French  and  from  English  history  ...  88 

Various  powers  held  by  a  government ;  the  people  may  wield  all 

power  ..........  89 

The  government  may  wield  all  power   held  by  the  people ;  ex- 
amples, England 90 

The  government  may  wield  part  of  the  power  held  by  the  people ; 

examples,  United  States        .......  91 

SECTION  II. —THE  IMPORTANT  AND  DISTINCTIVE  NATIONAL  ELEMENTS  IN  THE 
CONSTITUTION  ITSELF;  IN  THE  ATTRIBUTES  AND  FUNCTIONS  OF  THE  GOV- 
ERNMENT. 

1.   The  Preamble. 

Language  of  the  Preamble 93 

National  character  of  the  Preamble      ......  94 

Preamble  of  the  Confederate  Constitution,  compared        ...  95 

2.   The  Enacting  Clauses. 

The  powers  of  the  agent  cannot  exceed  those  of  the  principal       .       96,  97 
I.  The  Declaration  of  Supremacy  (Art.  VI.  §  2)    .         .         98-101 
The  supremacy  belongs  to  judge-made  as  well  as  to  enacted  law       .         99 
interpretation  of  the  IXth  and  Xth  amendments  .         .  100,101 

Powers  are  granted  by  the  people  to  the  States        ....       101 

II.  The  Status  of  Citizenship 10? 

III.  The  Proprietorship  of  Public  Lands  ....       103 


VI 


TABLE   OF   CONTENTS. 


IV.  Nature  of  the  Legislative  Powers  held   by  the  General 

Government  and  forbidden  to  the  States  .         .         .    104-106 


V.  Nature  of  the  Executive  Powers       .... 
VI  "         "       Judicial  Powers         .... 

VII.  The  Power  of  Amendment         ..... 

Language  of  the  Constitution  (Article  V.)   .... 

This  language  unlimited  ....... 

State  sovereignty  theory  as  applied  to  the  power  of  amendment 

The  people  created,  and  may  amend 

Significance  of  the  forms  to  be  pursued         .... 

Legality  of  the  amendment  abolishing  slavery 

Conclusion 


107 

108 

109-115 

109 

110 

111 

112 

113-115 

116-118 

119, 120 


PART   SECOND. 


IN  WHAT  MANNER  AND  BY  WHOM  IS  THE  CONSTITUTION  TO  BE 
AUTHORITATIVELY  CONSTRUED  AND  INTERPRETED  ;  OR  THE  MEANS 
AND  COMBINATIONS  FOR  ASSURING  THE  OBSERVANCE  OF  THE 
FUNDAMENTAL   LAW. 


Constitutional  law  includes  this  subject    ..... 
Necessity  for  a  sanction  to  constitutional  law;  kinds  of  sanction 
To  apply  a  sanction,  Constitution  must  be  interpreted 
Questions,  in  whom  does  the  power  of  interpretation  reside 


121 
122 
123 
124 
I.  It  resides  in  the  general  government  and  not  in  the  states  125-133 

125 
126 


The  political  society  which  created  must  interpret   .... 

The  people  are  the  final  interpreters    ...... 

The  government,  as  agents  of  the  people,  are  the  proximate  inter- 
preters      

General  assent  to  this  position 

Exceptional  dissents         ....... 

Political  dissents;  Virginia  and  Kentucky  resolutions  . 

Judicial  dissents;  Worcester  v.  Georgia  .... 
"  "         Ablemann  v.  Booth  .... 

Subordinate  power  of  the  states  to  interpret     . 

II.  The  final  power  to  interpret  authoritatively  resides  in  the 

Supreme  Court  of  the  United  States       .         .         .  134-148 

Question  stated,  whether  each  department  may  interpret  for  itself, 
or  whether  the  Supreme  Court  must  interpret  for  all 

General  acceptance  of  latter  view         ...... 

Contrary  theories ;  Jefferson's  and  Jackson's,  considered 

The  interdependence  of  the  three  departments  of  government 

Consequences  of  conceding  the  power  to  each  department  to  inter- 
pret authoritatively 138-140 


127 
128 
129-132 
129 
130 
131 
133 


,134 
135 
136 
137 


TABLE    OF   CONTENTS.  Vll 

UEOTIOI 

k  single  arbiter  necessary ;  nature  of  the  Constitution  as  a  funda- 
mental statute  requiring  a  judicial  interpretation   .         .         .  141 
Function  of  the  judiciary  to  interpret  statutes,  conceded  .         .         .       142 
English  courts  do  not  have  the  power,  because  there  is  no  written 

constitution  binding  on  the  government         ....  143 
Provisions  of  the  Constitution  which  support  these  conclusions  .       144,  145 
Objections  to  the  power  considered ;  that  the  court  is  not  progres- 
sive            146 

Objections  that  this  power  would  make  the  court  the  supreme  law- 


giver 


147 


Judicial  decisions ;  Van   Home's   Lessee  v.   Dorrance  ;  Martin  v. 

Hunter's  Lessee ;  Cohens  v.  Virginia ;  Ablemann  v.  Booth        .       148 

Sanctions  to  enforce  the  Constitution  ;  impeachments  ;  criminal  pros- 
ecutions          149 

Sanctions  pronouncing  a  statute  or  official  act  null  ....       150 


PART    THIRD. 

WHAT   POWERS    AND    CAPACITIES  ARE    CONFERRED   OR   IMPOSED  UPON 
THE    NATIONAL   GOVERNMENT,    AND    WHAT    ARE     CONFERRED    OR 
MPOSED   UPON   THE    SEVERAL    STATES. 

CHAPTEK    I. 

THE  LEADING    IDEAS    OF   CIVIL    POLITY  WHICH    ENTER    INTO    THE  ORGANIZATION 
OF   THE   UNITED   STATES. 

Divisions  of  the  subject 151 

Rights  of  the  states 152 

Powers  of  states  are  derived  from  the  nation 153 

National  affairs  committed  to  the  general  government :  local  affairs 

to  the  states 154 

Ideas  of  centralization  and  local  self-government,  fundamental      155-164 
Necessity  and  power  of  each  idea  ......  155-157 

Principle  of  local  self-government,  how  applied  .         .         .       158,159 

Historical  origin  of  principle  of  local  self-government    .         .         .  159-164 

CHAPTER    II. 

EXTERNAL  FORM  AND  ORGANIZATION  OF  THE  GOVERNMENT. 

Jbjects  of  this  chapter 165 


Vlll  TABLE   OF   CONTEXTS. 

SECTION  I.— THE  SEPARATION*  OF  THE  GOVERNMENT  INTO  TITREE  CO-ORDINATB 

DEPARTMENTS. 

SECTION 

Division  into  legislative,  executive,  and  judicial  departments        .         .166 

Same  division  in  England 167 

Organization  in  other  countries  .         .         .         .         .         .         .         .168 

This  arrangement  favorable  to  freedom    .         .         .         .         .         .169 

Reasons  for  this  result ;  tendency  of  power  to  increase         •         .  170,171 
Constitutional  provisions .         ........       172 

Separation  of  functions  not  complete  ...  ...  173 

President's  legislative  power ;  his  veto    .....        174-177 

His  legislative  function  inferior    .         .         .         .         .         .         .         .  1 75 

Legislative  power  of  the  British  Crown  ;  more  theoretical  than  real       1 76 
President's  legislative  power  more  substantial  .         .         .         .         .177 

President  need  not  assent  to  proposed  amendments      .         .         .         .178 

His  power  to  make  treaties 179 

Other  instances  of  interchange  of  functions  .  ....  180,181 
Tendency  of  one  department  to  encroach  upon  the  others  .  .  182 
The  legislature  the  most  powerful         ......  183-187 

Example  of  British  Parliament 184 

Congress  has  greater  inclination  to  amplify  its  powers  .  .  .  .185 
Effect  of  Congress  acquiring  all  governmental  power       .         .         186,  187 

SECTION  II.  — THE  SEPARATION  OF  THE  LEGISLATURE  INTO  TWO  CO-ORDINATE 

BRANCHES. 

Senate  and  House  of  Representatives  ;  constitutional  provisions  .         .188 

Example  of  British  Parliament 189 

Organization  and  nature  of  the  Senate ;  principle  of  local  self-gov- 
ernment      .         .         .         .         .         .         .         .         .         .         .190 

Organization  and  nature  of  the  House;  principle  of  centralization  .       191 
Number  of  members  of  House  determined  by  population  of  the  states  .  192 
Population  how  reckoned ;  constitutional  provision  .         .         .193 

Advantages  resulting  to  Southern  states       ......  194 

Increase  of  this  advantage  from  abolishing  slavery    .         .         .         .195 

Remedies  proposed      .         .         .         .         .         .         .         .         .         .196 

SECTION  III.  —  METIIOD  OF  CHOOSING  OFFICIAL  PERSONS. 

General  features ;  fewness  of  popular  elections  provided  for     .  .       197 

President  and  Vice-President,  how  chosen 198-203 

Constitutional  provisions  .         .         .         .         .         .         .         .  .198 

How  electors  appointed .   1H9 

Original  design  of  these  methods     ...                   .  200-202 

Change  in  this  design  ..........  208 

The  Senate,  how  chosen  .....                           .  204 

The  House  of  Representatives,  how  chosen                   .                 .  205-215 


TABLE   OF   CONTENTS.  is 

iectio* 
Constitutional  provisions  .  ......        205 

Powers  of  states  to  determine  qualifications  of  electors  .         .    206-209 

Power  of  Congress  to  guarantee  a  republican  form  of  government ; 

its  meaning  and  extent      .         .  .         .         .  .         .         .210 

The  United  States  should  control  the  qualifications  of  Congressional 

electors         .         .         .         .         .        .         .         .         .         .         .211 

Proposed  XlVth  amendment,  considered 212 

This  amendment  opposed  to  ideas  of  local  self-government  .  .  .213 
Another  amendment  suggested  giving  Congress  the  control  of  this 

subject 214,215 

Other  officers       .  216 

SECTION  IV.  — SOME  RULES  RESPECTING  THE  QUALIFICATIONS  OF  OFFICERS,  AND 
TUE  ORGANIZATION  OF  THE  HOUSES  OF  CONGRESS,  AND  THE  CONDUCT  OF 
BUSINESS  THEREBY. 

Qualifications  in  respect  to  age,  citizenship,  and  inhabitancy;  terms 

of  office 217 

Rules  relating  to  the  organization  of  Congress,  and  of  each  House  .  218 
Each  House  a  judge  of  the  election  of  its  members  .         .         .         .219 

Rules  of  order 220 

The  journal;  demand  for  the  yeas  and  nays  .....  221 
Revenue  bills  originate  in  the  House  of  Representatives  .  .  .  222 
Rules  applicable  to  the  members  individually  ....         223,  224 

CHAPTER   III. 

GENERAL  LIMITATIONS   UPON  THE  POWERS  OF   THE  UNITED    STATES  GOVERNMENT. 

Objects  of  this  chapter 225 

Government  of  the  United  States  limited  .....       226 

SECTION  I.  — EXPRESS  LIMITATIONS  UPON  THE  WHOLE  GOVERNMENT. 

Express  limitations,  some   upon  the  whole  government,  some  upon 

one  department  .         .  .         .         .  .         .  .         .         .227 

General  statement  and  nature  of  these  limitations  .         .         .         228-230 
The  Constitution  originally  contained  few     .....  228 

Provisions  of  first  eight  amendments  .....       229 

These  provisions  generally  found  in  state  constitutions  .         .  230 

To  whom  are  these  negative  provisions  addressed    .         .         .         231-234 
They  restrain  the  United   States    government    and    not    the 

states 232-234 

Barron  v.  Mayor  of  Baltimore 233 

Murphy  v.  The  People ;  Barker  v.  The  People ;  James  v.  The 

Commonwealth 234 

This  rule  an  unfortunate  one ;  citizens  may  be  exposed  to  state 
injustice,  and  not  sufficiently  protected  by  the  United  States 
government ;  illustrations 235,  ?3G 


X  TABLE   OF   CONTENTS. 

■Bonra 

Proposed  XlVth  amendment  as  a  remedy         ....      237 

The   limitations  are  addressed  to  all  departments  and  execute 

themselves 238 

Examination  and  discussion  of  these  limitations        ....       239 

1.  Right  to  keep  and  bear  arms  ;  a  militia 239 

2.  Quartering  soldiers  upon  private  citizens       ....       240 

3.  Unreasonable  seizures  and  searches  forbidden  ;  general  war- 

rants .         .         .  .         .         .         .         .  .  .241 

4.  Course  of  proceeding  in  criminal  prosecutions  regulated         .       242 
Exception  of  persons  in  military  service  .....  243 

5.  No  person  to  be  twice  put  in  jeopardy  for  the  same  offence  .       244 

6.  "         "      "     "   deprived  of  life,  etc.,  without  due  process  of 

law 245-250 

Provision  in  Magna  Charta      .......  245 

What  is  due  process  of  law 246 

Porter  v.  Taylor 24  7 

Wynehammer  v.  The  People  ;  Murray's  Lessee  v.  Hoboken 

Land  Co 249 

7.  Private  property  not  to  be  taken  for  public  use  without  com- 

pensation  .         .         .         .         .         ...         .         .    251-256 

Right  of  eminent  domain,  its  nature    ....  251-253 

Whether  private  property  may  ever  be  taken  for  military 

purposes,  without  compensation  :  Mitchell  v.  Harmony  254-256 
Importance  of  these  restrictive  clauses  ....       257 

May  they  ever  be  disregarded  in  an  internal  war     .         .         .  258 

SECTION  II.  —  IMPLIED   LIMITATIONS. 

The  United  States  government  one  of  limited  powers       .         .         .       259 
Within  the  scope  of  its  functions  it  is  absolute  ;  Congress  has  an  un- 
limited choice  of  means  which  conduce  to  a  lawful  end  .         .  260,  261 
Examples  of  the  practice  of  Congress  under  this  rule        .         .         .       262 
Examples  of  the  decisions  of  the  Supreme  Court  asserting  this  rule: 
Fisher  v.  Blight;  Martin  v.  Hunter's  Lessee  ;  McCulloch  v.  Ma- 
ryland ;  Gibbons  v.  Ogden 263-268 

Seneral  principles  established  by  judicial  decision   and  legislative 

practice 269 


CHAPTER   IV. 

THE   LEGISLATIVE    POWERS   OF   THE   UNITED    STATES   GOVERNMENT. 
SECTION  I.— THE  POWER  OP  TAXING. 

Provisions  of  the  Constitution 271 

Divisions  of  the  subject    ....  ...  272 


TABLE   OF   CONTENTS.  XI 

First.      What  Powers  of  Taxation  are  held  l>y  Congress? 

sec  noa 
L    The  Purposes  for  ivhich  Taxes  may  be  Laid  and  Collected. 

General  purposes ;  payment  of  debts,  the  common   defence, 

the  general  welfare 273,  274 

General  discretion  of  Congress  as  to  measures        .         .         .       211 
II.   The  Various  Kinds  of  Taxes. 

Different  kinds  of  taxes  defined  .....  276 

Direct  and  indirect  taxes       .......       277 

III.  The  Means  and  Methods  of  Enforcing  the  Taxing  Power. 

Constitutional  provisions  ;  apportionment  and  uniformity  .         .  278 

Direct  taxes  apportioned 279 

Indirect  taxes  uniform 280 

What  are  direct,  and  what  indirect,  taxes :  Hylton  v.  United 

States 281,  282 

Tax  on  articles  exported 283 

Measures  included  within  the  taxing  power  ....       284 

IV.  TZxtent  of  the  Taxing  Poiver. 

The  power  unlimited:  Providence  Bank  v.  Billings;  McCul- 

loch  v.  Maryland 285-287 

Stamp  duties  on  private  agreements  .....  288 

"  "       "  judicial  proceedings    ....         289-293 

These  stamps  are  taxes  on  property  ....     290,  291 

For  what  purposes  may  revenue  be  raised    .         .         .         294,  295 

Second.     What  Powers  of  Taxation  are  held  by  the  Several  States? 

I.  Implied  Limitations  upon  the  Power  of  the  States  to  Tax. 

States  have  the  taxing  power ;  but  it  is  subordinate ;  must 
be  used  second  to  that  of  the  United  States;  cannot  be 
exercised  upon  property  or  means  of  the  United  States     .  297 

Cases  illustrating  this  principle 298-304 

Taxing  United  States  Bank  :  McCulloch  v.  Maryland;  Osborn 

v.  Bank  of  United  States 298 

"      salary  of  United  States  officers :  Dobbins  v.  Commis- 
sioners   .........  299 

•'      United   States   securities  by  name  :    Weston  v.  City 

Council 300 

"      United  States  securities  as  a  part  of  tax-payer's  gen- 
eral   property:    Bank    of  Commerce  v.   City   of 
New  York;  Bank  Tax  Cases  ....  301,302 

"      stockholders  of  national  banks  :  Van  Allen  v.  Assess- 
ors ;  People  v.  Commissioners       ....       304 

General  conclusions  ........  305 

Effect  of  United   States  revenue  license :  McGuire  v.  The 

Commonwealth .         .306 

b 


m  TABLE   OF   CONTENTS. 

■80001 

II.  Express  Limitations  upon  the  Power  of  the  States  to  Tax. 

Constitutional  provisions :  duties  on  imports  and  exports;  in- 
spection laws 307 

What  are  inspection  laws 308 

Cases  illustrating  these  provisions:  Brown  v.  Maryland;  Li- 
cense cases;  Passenger  cases;  Cooley  v.  Port  Wardens; 
Ahny  v.  California 309-312 

SECTION  II.— TUE  TOWER  TO  BORROW  MONEY. 

Constitutional  provisions ;  general  diseretion  of  Congress  .         .       313 

Methods  of  borrowing  money  which  may  be  used  ....  314 

Power  to  charter  United  States  or  national  banks,  as  one  method: 

McCulloch  v.  Maryland;  Osborn  ».  Bank  of  United  States        .       315 
Issuing  treasury  notes ;  power  to  declare  them  legal  tender :  Metro- 
politan Bank  v.  Van  Dyck 316,317 

Power  of  the  states  to  borrow  ;  forbidden  to  emit  bills  of  credit        318,  319 
What  are  bills  of  credit:  Craig  v.  Missouri;  Briscoe  v.  The  Bank  320,  321 

SECTION  III.  — THE  POWER  TO  REGULATE  COMMERCE. 

Constitutional  provisions        .         .         .         .         .         .         .         .321a 

Reasons  for  these  provisions ;  division  of  the  subject  .         .         .       322 

First.     Nature  of  the  Power. 

Whether  the  power  is  exclusive  in  Congress  :  three  theories         .  323,  824 

What  is  commerce 325 

Power  of  Congress  extends  only  to  foreign  and  inter-state  commerce      326 
General  objects  of  this  grant  of  power  ....  327,  328 

Rules  of  interpretation:  police  powers  of  states:  regulations  of 

commerce  329-331 

Gibbons  v.  Ogden  333-33  7 

Rules  established  by  this  case 338 

Brown  v.  Maryland 339-343 

Wilson  v.  Blackbird  Creek  Co. 344-346 

New  York  v.  Miln 347-350 

The  License  cases 351-35  7 

Th  ■  Passenger  cases 358-360 

Cooley  v.  The  Port  Wardens 361,362 

Wheeling  Bridge  case 363-366 

Smith  v.  Maryland .367 

Sinnot  v.  Davenport      . 368 

Philadelphia  Bridge  case 869-372 

Power  of  states  to  construct  bridges 373 


TABLE   OF   CONTENTS.  Xlii 

Second.     The  Extent  of  the  Power. 

SECTIOH 

What  is  commerce:  commerce  among  the  states:  general  nature 

of  the  power  to  regulate 375-378 

Congress  may  pass  laws  regulating  (1)  places  .         .         .         .379 

(2)  Means  and  instruments  of  commerce    ....  380-382 
Construction  of  routes  for  internal  traffic        .....        382 

(3)  The  subject-matter  of  commerce  ......  383 

(4)  Laws  affecting  the  liability  of  persons  engaged  in  commerce    .        384 

SECTION  IV.  —  THE  POWER  TO  MAKE  RULES  FOR  NATURALIZATION. 

Constitutional  provisions 385 

What  is  naturalization 386 

Power  to  naturalize  resides  exclusively  in  Congress  .         .       387-390 

SECTION  V.  —  THE  POWER  TO  ENACT  BANKRUPT  LAWS. 

Constitutional  provisions 391 

I.     Nature  of  the  Poioer. 

States  may  exercise  it  in  the  absence  of  Congressional  action  ;  acts 

of  Congress  oust  the  authority  of  the  states       .        ...  392 

II.     Extent  of  the  Power:   What  Laws  may  Congress  pass. 

Meaning  of  "  bankrupt  "  and  "  bankruptcy "  .         .         .     393-402 

Kind  of  laws  which  Congress  may  pass  ....         397-402 

Reasons  in  favor  of  general  bankrupt  laws  ....     403-407 

SECTION  VI.  —  THE  POWER  TO  COIN  MONEY. 
Constitutional  provisions :  their  meaning        ....         408-410 

SECTION  Vn.  — THE  POWER  OVER  THE  POSTAL  SERVICE. 
Constitutional  provisions :  their  meaning  and  application      .         .   411,412 

SECTION  VIII.  — THE    POWER    TO    CREATE  AND    BESTOW  PATENT    RIGHTS    AND 

COPYRIGHTS. 

Constitutional  provisions ;  their  meaning  and  application    .        .     413,414 

SECTION  IX.  _  THE  POWER  TO  DEFINE  AND  PUNISH  CRIMES. 
Express  provisions  of  the  Constitution         .         .         .         .         .  415 

First.     The  Express  Power  to  define  and  punish  crimes. 

I.  Counterfeiting  the  Securities  and  Current  Coin  of  the  United  States. 

Meaning  and  extent  of  this  particular  power  .         .         .         417-419 

Whether  the  states  may  also  exercise  this  power  ....  420 


XIV  TABLE  OF  CONTENTS. 

II.     Piracies,  Felonies  committed  on  the  High  Seas,  and  Offences   agains  t 
the  Laiv  of  Nations. 

SECTION 

Extent  of  this  power  422,  423 

Piracy;  meaning;  kinds;  special  cases  of  ....  424-427 
Offences  committed  on  the  high  seas ;  what  are  the  high  seas  428-430 

III.     Treason  against  the  United  States. 

What  is  treason 431-433 

Punishment  thereof  ........        434,  435 

What  included  within  the  power 436 

Second.     The  Implied  Powers  to  define  and  punish  Crimes. 
The  origin  and  extent  of  these  powers 437-440 

SECTION  X.  — THE  MILITARY  AND  WAR  POWERS. 
Constitutional  provisions 441 

First.     The  Powers  which  relate  to  the  Inception  and  Conduct  of  War. 

I.   The  Power  to  declare  War. 

Reasons  for  intrusting  this  power  to  Congress  .....  443 
Can  a  war  exist  before  Congress  has  declared  war  .  .  .  444 
Can  the  President  so  act  as  to  create  a  proper  war  .  .  .  445-453 
Commencement  of  a  civil  war 447-453 

II.     The  Power  to  grant  Letters  of  Marque  and  Reprisal. 
Nature  of  this  power, 454 

III. —  The  Power  to  make  Rules  concerning  Captures  on  Land  and  Water. 

What  are  "  captures  " 455 

Extent  and  nature  of  the  power 456,  457 

Captures  during  a  civil  war  .......  458,  459 

Second.     The  Powers  which  relate  to  the  raising,  maintaining,  equipping 
and  governing  the  Army  and  Navy. 

I.     The  Power  to  raise  and  support  the  Forces. 
Necessity  of  this  power ;  limitations  upon  it          ....  460-462 
What  measures  Congress  may  adopt 463-466 

II.     The  Power  to  govern  the  Forces. 

Nature  and  extent  of  this  power        ......     467,468 

Military  Law  .  469-471 

Third.     Those  Powers  which  relate  to  the  Employment  of  the  Militia  in  the. 
Service  of  the  General  Government. 

The  militia  belongs  to  the  states 472 


TABLE   OF   CONTENTS.  XV 

SECTIOW 

Extent  of  power  of  Congress  to  call  forth  the  militia        .  473,  4  74 

Houston  v.  Moore :   Martin  v.  Mott      .         .         .         .  .475,4  76 

Conscription, 

Nature  of  conscription 477,  4  78 

Knudler  v.  Lane 479-482 

Arguments  against  the  power 480 

"  in  favor  of  the  power 481 

Conclusion 482 


SECTION  XI.  —  THE  POWER  OVER  THE  TERRITORIES. 

Constitutional  provisions 483, 484 

I.     The  Right  hf  Proprietorship. 

Title  to  unappropriated  lands  ;  cessions  by  the  states           .         .  485-487 

Acquisition  of  lands  by  treaty  ;  power  to  acquire  land  by  treaty  .  488 

Power  to  dispose  of  public  lands 489 

II.     The  Right  of  Government. 

Government  of  the  District  of  Columbia, 490,491 

Limitations  upon  this  power  to  govern 492,  493 

Government  of  the  territories  ;  source  of  this  power  .         .         .  494-499 

The  Dred  Scott  case 496-499 


SECTION  XII.  —  EXPRESS   PROHIBITIONS   UPON  THE   EXERCISE  OF  LEGISLATIVE 

POWERS. 

Divisions  of  this  subject 500 

First.     Prohibitions  directed  to  Congress,  or  to  it  and  the  State  Legislatures 
I.     Bills  of  Attainder. 

Definition  and  description 501-503 

The  Test  Oath  cases;  Cummings  v.  Missouri  ;  Ex  parte  Garland     504-511 

II.     Ex  Post  Facto  Laws. 

Definition  and  description 512-514 

Calder  v.  Bull ;  Fletcher  v.  Peck  ;  Watson  v.  Mercer  .         .  515-518 

Lord  v.  Chadbourne  ;  Woart  v.  Winnick ;  Rich  v.  Flanders ;  State 

v.  Paul 519-521 

Hartung  v.  The  People 522-524 

The  Test  Oath  cases 525-528 

Examination  of  these  cases  ;  when  is  a  test  oath  a  penalty  .         •  529-535 


ivi  TABLE   OF    CONTENTS. 

III.      Other  Express  Prohibitions. 

stcrnon 
Authority  to  draw  money  ;  titles  of  nobility     .....       536 

Second.     Prohibitions  directed  to  the  Slate  Legislatures  alone. 

Impairing  the  Obligations  of  Contracts. 

Divisions  of  the  subject  ........         538 

I.      What  are  Contracts  within  this  provision  of  the  Constitution? 

1.  Executor//  contracts  .........     540 

2.  Executed  "  541 

Grants  made  by  states  542-546 

3.  Offices 547-553 

4.  Licenses      ..........     554-559 

5.  Private  corporations ;  definition       .....         560,561 
Questions  involved     ..........    562 

(1)  A  charter  is  a  contract  in  its  general  scope  and  design      563—568 
Dartmouth  College  v.  Woodward ;  Providence  Bank  v. 

Billings;   Planters'  Bank  v.  Sharp      .          .         .  504,565 

Cases  in  state  courts 566-568 

(2)  A  charter  is  a  contract  in  respect  to  its  express  collateral 

stipulations;  stipulations  against  taxing,  and  against 
exercise  of  the  power  of  eminent  domain        .         .     569-584 
United  States  Supreme  Court  cases  .  .         .         571-573 

Cases  in  state  courts 574-583 

Binghampton  Bridge  case  ......        584 

(3)  Collateral  stipulations  not  implied  in  charters         .         .     585,  586 

6.  Municipal  Corporations  .......        587 

II.      What  is  the  Obligation  of  a  Contract? 
The  meaning  technical  not  popular  .......     588 

Obligation  in  the  Roman  Law        .......         589 

The  law  creates  the  obligation  590-592 

Ogden  v.  Saunders 593 

Illustrations 594,  595 

A  remedial  right  included  in  the  obligation    ....  596,597 

III.      What  State  Laws  impair  the  Obligation  of  Contracts. 

General  Rules  ;  meaning  of  impair ;  future  contracts         .         .     598,599 

1.  Laws  which  apply  directly  to  the  terms  of  a  contract     .         .  600,  601 
Exercise  of  right  of  eminent  domain         ......     602 

State  Insolvent  Laws;  their  effect 603-608 

2.  Laws  which  apply  directly  to  the  remedy  ....  609-627 
A  remedial  right  included  in  the  obligation  ....  610 
What  is  the  remedial  right  ;  distinction  between  it  and  procedure  611,  612 
Modes  of  procedure  not  included  in  the  obligation  .  .  .  613 
Illustrations.      .         .         .         .         .         .         .         .         .                  .614 


TABLE  OP   CONTENTS.  xvii 

SECTION 

Bronson  v.  Kinzie ;  McCracken  v.  Hay  ward,  Grantley's  Lessee  v. 

Ewing;  Curran  v.  Arkansas    ......     615,  616 

(1)  Deprivation  of  remedies 617 

(2)  Statutes  of  limitation 618 

(3)  Imprisonment  for  debt 619 

(4)  Stay  and  appraisement  laws 620-624 

(5)  Exemptions  from  execution 625-627 

CHAPTER   V. 

THE   EXECUTIVE   POWERS. 

Constitutional  provisions 628 

Divisions  of  the  subject 629 

BECTION  I.  —  GENERAL  NATURE  OF  THE  EXECUTIVE  DEPARTMENT  AND  OF  THE 
EXECUTIVE  FUNCTIONS. 

Nature  of  the  Executive  Department ;  independence  of  the  Presi- 
dent        630-632 

President's  powers  chiefly  political 633,  634 

Classes  of  Presidential  powers  ;  those  completely  conferred  by  the 

Constitution 635,  636 

Those  which  act  upon  occasions  created  by  statutes    .         .        .         .637 

Those  which  are  created  by  statutes        ......         638 

Extent  of  President's  discretion  .......    639 

Marbury  v.  Madison 640 

Tendency  to  encroach  upon  functions  of  the  President      .        .  .  641 

SECTION  n.  —  THE  POWER  TO  APPOINT  OFFICERS. 

Nature  of  this  power  ;  what  officers  are  to  be  appointed  .  642,  643 
Objections  to  this  power  ;  reasons  in  its  favor     ....     644,645 

Extent  of  the  power 646 

The  power  of  removal  considered       ......     647-650 

Theories  examined  .         . 651,652 

Third  theory  ;  that  the  whole  power  over  the  subject  resides  in 

Congress .    653 

The  President's  power  to  fill  vacancies  which  may  happen  during 

a  recess  of  the  Senate 654-657 

Proper  mode  of  exercising  the  power  to  appoint  and  to  remove  658-661 
Tenure  of  Office  Statute 661 

BECTION  in.— THE  POWER  AND  DUTY  OF  THE  PRESIDENT  TO  TAKE  CARE  THAT 
THE  LAWS  BE  FAITHFULLY  EXECUTED. 

Nature,  extent,  and  degrees  of  this  pawer 662 

The  President  may  not,  as  a  general  rule,  judge  independently 

as  to  the  validity  of  laws 663-667 

Two  exceptions  to  this  rule  668 


xviii  TABLE   OF   CONTENTS. 

SECTION  IV.  —  TIIE  POWER  OF   TIIE  PRESIDENT  TO  MANAGE  TIIE  FOREIGN  AND 
INTERNATIONAL  RELATIONS  OF  THE  UNITED  STATES. 

SECTION 

Constitutional  provisions  669 

This  function  separated  into  two  branches      .  ...         670 

The  President's  power  to  conduct  negotiations  .         .         .     671,672 

The  power  to  make  treaties  ......  673-678 

Kinds  of  treaties  which  may  be  entered  into 674 

What  kind  of  treaties  cannot  be  made 675 

How  treaties  operate  ;  those  which  at  once  execute  themselves ; 

those  which  are  promissory         ......       676-678 

Legislative  powers  flowing  from  this  function         .         .         .  679-681 

SECTION  V.— THE  POWER  OF  THE  PRESIDENT  TO  GRANT  REPRIEVES  AND 

PARDONS. 

Definition  of  pai'dons 682 

Pardons  granted  by  the  King  or  by  Parliament      ....         683 

I.     Extent  of  the  President's  power.  685-694 

General  rule ;  he  may  resort  to  any  species  of  pardon  known  to 

the  English  law ;  U.  S.  v.  Wilson  ;  Ex  parte  Wells     .         .     685-687 

The  common  pardon  after  conviction 687 

The  conditional    "  "  " 688 

The  pardon  before  conviction,  trial,  etc. ;  Ex  parte  Garland  .  689,  690 

General  pardons ;  general  amnesties  ;  may  the  President  issue  a 

general  amnesty 691-694 

II.     The  powers  of  Congress  over  pardons.  695,  696 

May  not  limit  the  President's  authority  .         .         .         .         .         695 

Whether  Congress  has  any  independent  authority      ....     696 

SECTION  VI.  — THE  POWER  OF  THE   PRESIDENT  TO  GIVE  INFORMATION  AND  TO 
RECOMMEND  MEASURES  TO  CONGRESS. 

The  power  and  duty  to  give  information   .....  697-699 

The  power  to  recommend  measures       .....  700-702 

Nature  and  extent  of  this  power         ......  700 

Its  abuse  ;  executive  encroachments  upon  the  legislature       .  701,  702 

SECTION  VII.  — THE  POWERS  OF  THE  PRESIDENT  AS  COMMANDER-IN-CHIEF. 

Constitutional  provisions  ;  general  nature  of  these  powers  .  .  703,704 
Distinction  between  the  function  of  executing  the  laws,  and  the 

functions  of  commander-in-chief  ;  the  President  wages  war  705,  706 
Suspension   of  the   writ  of  habeas  corpus ;    who  may  suspend  ; 

effect 707,708 

Additional  powers  during  war  ;  martial  law  ....  709-714 


TABLE   OF  CONTENTS.  xil 

8EOTIOI 

Congress  obtains  no  additional  powers  during  war  .  .  .  710 
Whatever  the  President  can  obtain,  must  flow  from  his  function  of 

commander-in-chief        ........  711 

Do  such  powers  exist  ;  "  military  law,"  "  military  government," 

and  "  martial  law  "  defined         .......  712 

Opinion  of  Ld.  C.  J.  Cockburn  ;  decision  in  Ex  parte  Milligan      .  713 

Remarks  on  Ex  parte  Milligan  ;  nature  and  extent  of  martial  law  .     714 

SECTION  VIII.  — IMPEACHMENT. 

Constitutional  provisions  ........     715 

(1)  Who  may  be  impeached;  what  are  civil  officers    .         .         .         716 

(2)  The  lawful  grounds  of  an  impeachment  ....  717-727 
First  theory  :  impeachment  restricted  to  offences  made  indictable 

by  statute 717,718 

Second  theory :  impeachment  extends  to  all  violations  of  official 

duty 719 

Examination  of  these  theories;  historical  precedents  in  U.  S.      .     720,  721 
The  second  theory  accords  with  the  general  plan  of  the  govern- 
ment        722-726 

Meaning  of  "  high  crimes  and  misdemeanors  "  .  .  .  .  725 
Debates  in  the  constitutional  convention,  etc 727 

(3)  What  punishment  may  be  inflicted;  suspension  from  office 

during  the  pendency  of  the  proceedings  ....         728 


CHAPTER  VI. 

THE  JUDICIAL   POWERS   OF  THE   UNITED   STATES   GOVERNMENT. 

Constitutional  provisions  ........      729 

Nature  of  Jurisdiction  in  general 730-739 

Jurisdiction  civil,  criminal,  common-law,  equity,  admiralty,  etc.      .         731 

Original  or  appellate 732 

Exclusive  or  concurrent 733 

General  or  limited '     734-736 

Limited  by  the  subject-matter 737 

"      in  respect  of  parties  738 

Derived  from  the  Common  Law  or  from  statutes  .         .         .         739 

Nature  and  extent  of  the  jurisdiction  of  U.  S.  courts  in  general ; 

reasons  for  conferring  it 740-745 

Jurisdiction  of  U-  S.  courts  is  either  "  necessary  "  or  "  supplemen- 
tary "     746 

Necessary  jurisdiction  considered 746-757 

Cases  arising  under  the  Constitution       ....  747-750 

What  are  such  cases    .........    748 

How  far  this  jurisdiction  exclusive,  or  supreme        .        .        .         750 


XX  TABLE  OF  CONTENTS. 

SEOTIOH 

Cases  arising  under  the  laws  of  the  U.  S.            ....  751 

"           "           "       "     treaties 752 

"     affecting  ambassadors,  etc. 753 

"     of  admiralty 754 

Controversies  to  which  the  U.  S.  is  a  party          ....  755 

"            between  states 756 

The  supplementary  jurisdiction  considered  .         .         .  758,759 

Some  special  rules  ;  no  common  law  jurisdiction  ;  the  power  of 

Congress  over  the  jurisdiction 7€0 


CASES   CITED. 


Antelope,  The  (10  W.) 

Backus  v.  Lebanon  (11  N.  H.)  366, 
Baldwin  v.  Hale  (1  Wall.) 
Bank  of  Alabama  v.  Dalton  (9  H. ) 
Bank  of  Commerce  v.  N.  Y.  City 
(2  Black)  171,  191, 

Bank  of  Penn.  t    Commonwealth 

(7  Harris) 
Bank  of  Republic  J.  Co.  of  Ham- 
ilton (21  111.) 
Bank  of  U.  S.  v.  Deveaux  (5  Cr.) 
Bank  Tax  cases  (2  Wall.)        171, 
Barker  v.  People  (3  Cow.) 

v.  Pittsburgh  (2  Barr) 
Barron  v.  Mayor,  etc.  (7  P.) 
Beal  v.  Nason  (2  Shep.) 
Beauregard  v.  N.  0.  (18  H.) 
Beers  v.  Haughton  (9  P.) 
Betts  v   Bagley  (12  Pick.) 
Billmyer  v.  Evans  (4  Wright) 
Binghampton    Bridge     case     (3 

Wall.) 
Blanchard  v.  Russell  (13  Mass.)  i 

Boardman  v.  De  Forest  (5  Conn.) 
Bollman,  Ex  parte  (4  Cr.) 
Boston,  etc.  R.  R.  Co.  v.  Salem, 

etc.  R.  R.  Co.  (2  Gray) 
Boyle  v.  Zacharie  (6  P.) 
Bradford  v.  Farrand  (13  Mass.) 
Brandon  v.  Green  (7  Humph.) 
Breitenbach  v.  Bush  (8  Wright) 
Brewster  v.  Hough  (10  N.  H  ) 
Briscoe  v.  Bank,  etc.  (11  P.) 
Bronson  v.  Kinzie  (1  H.)         400, 

v.  Newberry  (2  Doug.) 
Brown  v.  Maryland  (12  W.)    196, 

v.  Wilch  (26  Ind.) 
Bruffitt  v.  G.  W.  R.   R.   Co.   (25 

111.) 
Bunn  v.  Gorgas  (5  Wright) 


Butler  v.  Pennsylvania  (10  H.) 


Calder  v.  Bull  (3  Dall.)  320, 

v.  Kurby  (5  Gray) 
Call  v.  Hagger  (8  Mass.)  403, 

Cargill  v.  Power  (1  Mann.) 
Carpenter  v.  Pennsylvania  (17  H.) 
Charles  River  Bridge  v.  Warren 

Bridge  (HP.) 
Chirac  v.  Chirac  (2  W.) 
City  of  Utica  v.  Churchill  (6  Tiff.) 
Clarke  i>.  Bazadone  (1  Cr.) 
Coffin  v.  Rich  (45  Me.) 
Cohen  v.  Wright  (26  Cal.) 
Cohens  v.  Virginia  (6  W.)         96, 
Collettt'.  Collett  (2  Dall.) 
Commonwealth  v.  Bacon  (6  S.  & 

R.) 
Commonwealth  v.  Mann  (5  W.  & 

S.) 
Commonwealth  v.  New  Bedford 

Bridge  (2  Gray) 
Conkey  v.  Hart  (4  Kern.) 
Connor  v.  N.  Y.  (2  Sandf.) 
Conway    v.    Taylor's   Lessee    (1 

Black) 
Cooky.  Moffatt  (5H.) 
Cooley  v.  Port  Wardens  (12  H.) 

Coupland,  Ex  parte  (26  Texas) 
Craig  v.  Missouri  (4  P.) 
Cummings  v.  Missouri  (4  Wall.) 
321, 
Curran  v.  Arkansas  (15  H.) 


357 

331 

360 
404 
407 
333 

380 
251 
193 
516 
334 
348 
514 
250 

356 

357 

367 
403 
355 

246 
394 
198, 
234 
304 
204 
319, 
340 
402 


Danks  v.  Quackenboss  (1  Comst.)  410 
Darrington  v.  B'k  of  Ala.  (13  H.)  205 
Dartmouth  Coll.  v.  Woodward  (4 

W.)  352,  357,  365,  382 

De  Bolt  v.  Ohio  Life  Ins.  Co.  (1 
Ohio  St.)  368, 

De  Cordova  v.  Galveston  (4  Tex- 
as) 
\  De  Lovio  v.  Boit  (2  Gall.) 
Dobbins    v.   The  Commissioners 
(16  P.) 


377 


336 
275 


189 


Dodge  v.  Woolsey  (18  H.)   369,  377 


XX11 


CASES   CITED. 


Page 
Donelly  v.  Corbett  (3  Sekl.)  395,  405 
Dorsey,  Matter  of  (7  Port.)  348 

Dred  Scott  v.  Sandford  (19  H.)      393 
Durousseau  v.  U.  S.  (6  Cr.)  516 

East  Hartford  v.  Hartford  Bridge 
(17  Conn.)  374,382 

Easton  Bank  v.  Commonwealth 
(10  Barr)  375 

Evans  u.  Montgomery  (4  W  &  S.)   403 

Farmer's  &  M.  B'k  v.  Smith  (C 

W.)  393 

Fishery  Blight  (2  Cr.)  168 

v.  Lackey  (6  Blackf.)  405 

Fletcher  v.  Peck  (6  Cr.)  333,  351 

Foster  v.  Neilson  (2  P.)  450 

Fox  v.  Ohio  (5  H.)  271 


Garland,  Ex  parte  (4  Wall.)  319, 
340,  459, 
Gelpcke  v.  Dubuque  (1  Wall.) 
Gibbons  v.  Ogden  (9  W.)  170,  214, 
Gilmau  v.  Lockwood 

v.  Philadelphia  (3  Wall.) 

Gordon  v.  The  Appeal  Tax  Court 

(3H.) 
Grammar  School  v.  Burt  (11  Vt.) 
Grantley's  Lessee  v.  Ewing  (3  H.) 


Griffin   v.    The   Mayor,    etc. 
Comst.) 


(1 


323, 
461 
516 

,  242 
395 

224, 
238 

370 
367 
402, 
407 

161 


Hartung  v.  The  People  (8  Smith)  337 
Hawthorne  v.  Calef  (2  Wall.)  392,  412 
Hemstead  o.  Reed  (6  Conn.)  393 

Hennen,  Ex  parte,  (13  P.)  430 

Hiue,  The,  (4  Wall.)  275,513 

Hintrager  v.  Bates  (13  Iowa)  201 

Hirn  v.  Ohio  (1  Ohio  St.)  358 

Hodgson  v.  Bowerbank  (5  Cr.)  517 
Hope  v.  Johnson  (2  Yerg.)  336 

Houston  v.  Moore  (5  W.)  251,  299 
Howard  v.  Bugbee  (24  H.)  407 

Hylton  v.  U.  S.  (3  Dall.)  178 

Iron   City  B'k    v.  Pittsburgh  (1 
Wright)  375 

James   v.  Commonwealth  (12  S. 
&R.)  149 

Xearney,  Ex  parte,  (7  W.)  517 

Kelly  v.  Drury  (9  Allen)  395 

Kennebec     Co.    v.    Laboree     (2 

Greenl.)  334,403,404 

Kimberly  v.  Ely  (6 Pick.)  393 

Kingley  v.  Cousins  (47  Me.)  404 


Pag* 
Klein,  In  re  (1  H.)  258 

Knoup  v.  Piqua  B'k  (1  Ohio  St.)   356,' 
368   377 
Knudler  v.  Lane  (9  Wright)  301 

Kunzler  v.  Cohaus  (5  Hill)  259 

License  cases  (5  H.)  197,  228 

Lick  v.  Faulkner  (25  Cal.)  201 

Lord  v.  Chadbourne  (42  Me.)  334 
Loughborough  v.  Blake  (5  YV.)  310 
Louis,  The,  (2  Dodson)  274 

Luther  v.  Borden  (7  H.)  516 

Magruder,  Ex  parte,  347 

Marbury  v.  Madison  (1  Cr.)  419,  423, 

516 
Martin  v.  Hunter's  Lessee  (1  W.)  96, 
168,  514 
i\Mott(12W.)  299 

Mason  v.  Haile  (12  W.)  404 

Matheny  v.  Golden  (5  Ohio  St.)  378 
McCormick     v.     Pickering      (4 

Comst.)  '     259 

McCormick  v.  Rusch   (Am.  Law 

Reg.)  408 

McCracken  v.  Hay  ward  (2  H.)     401, 

406 
McCulloch  v.  Maryland  (4  W.)  169, 
181,  189,  200 
McElmoyne  v.  Cohen  (13  P.)  404 
McGee  v.  Matins  (4  Wall.)  353 

McGuire    v.    Commonwealth    (3 

Wall.)  195 

Mechanics  &  Tr.  B'k  v.  De  Bolt 

(1  Ohio  St.)  368,  377 

Mechanics  &  Tr.  B'k  v.  De  Bolt 

(18  H.)  377 

Mechanics   &  Tr.  B'k  v.  Thomas 

(18  H.)  377 

Mede  v.  Hand  (Am.  Law  Reg.)  411 
Metropolitan    B'k  v.   Van   Dvck 

(13  Smith)  171,201,203,209 

Metropolitan  B'd  of  Ex.  v.  Barrie 

(7  Tiff.)  361 

Michigan    B'k     v.    Hastings    (1 

Doug.)  367 

Milligan,  Ex  parte,  (4  Wall.)  165,  470, 
475,  476,  478 
Mississippi  v.  Andrew  Johnson  (4 

Wall.)  '     419 

Mississippi  v.  Smedes  (2G  Miss.)  348 
Mitchell  v.  Harmony  (13  H  )  162 
Money  v.  Leach  (3  Burr.)  154 

Moore  v.  Am.  Trans.  Co.  (24  H.)  247 
Morse  v.  Gould  (1  Kern.)  411 

Moses  Taylor,  The,  (4  Wall.)  513 
Mossman  v.  Higgenson  (4  Dall.)  517 
Mott  v.  Pa.  R.  11.  Co.  (6  Casey)  375 
Mundy  v.  Monroe  (1  Mann.)  402 


CASES   CITED. 


XXll] 


Murphy  v.  People  (2  Cow.)  148 

Murray's  Lessee  v  Hoboken  Land 
Co.  "(18  H.)  159 

Neves  v.  Scott  (13  H.)  516 

New  York  v.  Miln  (11  P.)  225 

Nichols  v.  Levy  (5  Wall.)  516 

Norton  v.  Cook  (9  Conn.)  394 

Ogden  v.  Saunders  (12  W.)   251,  253, 
385,  387,  393,  394 


Ohio  Lite  Ins. 
H.) 


Co.  v.  DeBolt  (16 


369 


Oliver  Lee  &  Co.'s  B'k,  Matter 

of,  (7  Smith)  367,  387,  392 

Oriental  B'k  v.  Freize  (6  Shep.)  404 
Osborn  v.  B'k  of  U.  S.  (9  W.)       189, 

200 

Passenger  cases  (7  H.)  197,  231 

Pennsylvania  v.  Wheeling  Bridge 

(13  'H.)  235 

Pennsylvania  v.  Wheeling  Bridge 

(18  H.)  171,  236 

People  v.  Commissioners  (4  Wall.)  171, 

194 
People  v.  Commissioners  of  Tax- 
es (9  Smith)  191 
People  v.  Commissioners  of  Tax- 
es (8  Tiff.)  194 
People  v.  Pinckney  (5  Tiff.)  382 
Phalen  v.  Virginia  (8  H.)  359,  516 
Piqua  B'k  v.  Knoup  (16  How.)    369, 

377 
Piscataqua  B'd  Co.  v.  N.  H.  B'd 

Co.  (7  N.  H.;  372 

Planters  B'k  v.  Sharp  (6  H.)  366 
Porter  v.  Taylor  (4  Hill)  158 

Prize  cases  (2  Black)  284,  290 

Providence  B'k  v.  Billings  (4  P.)  181, 
366,  380 
Pugh  v.  Bussell  (2  Blackf.)  394 

Quackenboss  v.  Danks  (1  Den.)     410 

Rich  v.  Flanders  (39  N.  H.)  335 

Richmond  R.  R.  Co.  v.  Louisa  R. 

R.  Co.  (13  H.)  371 

Rockwell  v.  Hubbell  (2  Doug.)  411 
Roosevelt  i\  Cebra  (17  Johns.)  398 
Ross  Co.  B'k   v.  Lewis  (5  Ohio 

St.)  378 

Sackett  v.  Andross  (5  Hill)  259 

Sandusky  City  B'k  v.  W-lbor  (7 
^  Ohio  St.)     *  '     378 

'•*eoby  v.  Gibson  (Am.  Law  Reg.)  407 
Scribner  v.  Fisher  (2  Gray)  395 

Rinnctt  v.  Davenport  (22  H.)  237 


Page 
Skelly  v.  Jefferson  B'k  (9  Ohio 

St.)  378 

Skelly  v.  Jefferson  B'k  (1  Black)  378 

Smith  v.  Maryland  (18  H.)  237 

v.  Mead  (3  Conn.)  393 

Society  P.  G.  v.  Wheeler  (2  Gall.)  403, 

404 

State  v.  Cummings  (36  Mo.)  348 

v.  Garesche  (36  Mo.)  348 

v.  Holmes  (1  Chand.)  361 

v.  Moore  (5  Ohio  St.)  378 

v.  Paul  (2  Ames)  336 

Stocking  v.  Hunt  (3  Den.)  403 

Sturges  v.  Crovvningshield  (4  W.)  252, 

385,  392,  404 

Swift  v.  Tyson  (16  P.)  516 

Terret  v.  Tavlor  (9  Cr.)  352 

Thayer  v.  Hedges  (22Ind.)  201 

v.  Hedges  (23  Ind.)  201 

Thompson  v.  Alger  (12  Met.)  259 

Toledo  B'k  r.  Bond  (1  Ohio  St.)  356, 
368,  377 

Turnpike  Co.  v.  State  (3  Wall.)  381 

U.  S.  v.  Bevans  (S  W.)  275,517 

v.  Coolridge  (1  W.)  517 

v.  Furlong  (5  W.)  276 

v.  Grush  (5  Mason)  275 

v.  Holmes  (5  W.)  276 

v.  Hudson  (7  Cr.)  517 

v.  Marigold  (9  H.)  280 

v.  Moore  (3  Cr.)  516 

v.  Ross  (1  Gall.)  275 

v.  Smith  (5  W.)  273 

v.  Villate  (2  Dall.)  250 
v.  Wilson  (7  P.)              457,464 

v.  Wiltberger  (5  W.)  275 

Van  Allen  v.  Assessors  (3  Wall.)  171, 

194 
Van  Home's  Lessee  v.  Dorrance 

(2  Dall.)  96 

Van    Husen    v.    Kanhouse    (13 

Mich.)  201 

Van    Rensselaer    v.    Snyder     (3 

Kern.)  '     403 

Van  Zant  v.  Waddell  (2  Yerg.)       336 

Walsh  v.  Farrand  (13  Mass.)  394 

Warner  v.   People  (2  Den.)  355 

Warren  v.  Paul  (22  Ind.)  184 

Watkins,  Ex  parte,  (3  P.)  517 

Watson  v.  Mercer  (8  P.)  333 

v.  Tarpley  (18  H.)  516 

Webster  v.  Cooper  (14  H.)  516 

Wells,  Ex  parte,  (18  H.)  458,  459,  460 
Weston  v.  City  Council  (2  P.)      190, 

191 


XXIV 


CASES   CITED. 


Page 
West  River  Bridge  Co.  v.  Dix  (6 

II.)  357, 392 

Wilson  v.  Blackbird  Creek   Co. 

(2  P.)  222 

Wiscart  v.  Dauehv  (3  Dull.)  510 

Woart  v.  Winnick  (3  N.  11.)  335 


Page 

Wood  t>   Child  (20111.)  403 

v.  Leadbitter  (13  M.  &  W.)  358 
Woodruff  v.  Trapnall  (K)  II.)  371 
Worcester  v.  Georgia  (6  P.)  85 

Wynehammer  v.  People  (3  Kern.)  15'J 


ADDITIONAL   CASES   IN   THE   APPENDIX. 


Banks  v.  Supervisors  (7  Wall.  26)  535 
v.  The  Mayor  (7  lb.  16)       535 
Barings  v.  Dabney  (19  lb.  1)  544 

Barteniever  v.  Iowa  (18  lb.  129)      530 
Boice  v.  Tabb  (18  lb.  546)  544 

Bradwell  v.  State  (16  lb.  130)  529 

Butts  v.  Muscatine  (8  lb.  575)   544,  545 

Cannon  v.  New  Orleans  (20  lb.  577 )  538 
Case  of  the  State  Freight  Tax  ( 1 5 

540 
544 
544 
534 
536,  539 


lb.  232) 
Chicago  v.  Sheldon  (9  lb.  50) 
Citv  v.  Lampson  (9  lb.  477) 
Collector  v.  Day  (11  lb.  113) 
Crandall  v.  Nevada  (6  lb.  35) 


Delaware  R.  R.  Tax  (18  lb.  206)  539 
Ducat  v.  Chicago  (10  lb.  410)  524 

Farman  v.  Nichol  (8  lb.  44)  544 

Georgia  v.  Stanton  (6  lb.  50)  547 

Gunn  v.  Barry  (15  lb.  610)  545 

Hamilton  Co.  v.  Mass.  (6  lb.  632)  535 
Hepburn  v.  Griswold  (8  lb.  603)  523 
Hinson  v.  Lott  (8  lb.  148)  538 

Holyoke  Co.  v.  Lyman  (15  lb.  500)  545 
Home  of  the  Friendless  v.  Rouse 
(8  lb.  430)  544 


Knox  v.Lee  (12  lb.  457) 


523 


Lane  County  v.  Oregon  (7  lb.  71)  520 
Legal  Tender  Cases  (12  lb.  457)  523 
License  Tax  Cases  (5  lb.  462)  537 

Liverpool  Ins.  Co.  v.  Mass.  (10  To. 

567)  524 

Loan  Asso.  v.  Topeka  (20  lb.  655)  535 


Miller  v.  State  (15  lb.  478) 


545 


National  Bank  v.  Commonwealth 
(9  lb.  353)  536 

Olcott  v.  Supervisors  (16  lb.  678)    545 

Dsborne  v.  Mobile  (16  lb.  479)         539 

v.  Nicholson  (13  lb.  655)    544 


Pacific  Ins.  Co.  v.  Soule  (7  Wall. 

433)  533 

Paul  v.  Virginia  (8  lb.  168)     524,  525, 

539 
Peele  v.  Morgan  (19  lb.  581)  538 

Pennsylvania   College  Cases   (13 

lb. 190)  545 

Pervear  v.  Commonwealth  (5  lb. 

475)  537 

Provident  Inst.  v.  Mass.  (6  lb.  611)  535 

Railroad  Co.  v.  Fuller  (17  lb.  560)  542 
v.  Jackson  (7  lb.  362)  538 
v.  Peniston    (18  lb. 

5)  536 

v.Penn'a(15lb.300)  538 
v.  Richmond  (19  lb. 

584)  543 

Reading R,  R.  v.  Penn'a  ( 1 5  lb.  284)  539 

v.Penn'a  (15  lb.  232)540 

Slaughter  House  Cases  (16  lb.  36)  526 
Soc.  for  Savings  v.  Coite  (6  lb.  594)  535 
State  of  Georgia  v.  Stanton  (6  lb. 

50)  547 

State  Tonnage  Tax  Cases  (12  lb. 

204)  538 

Steamship  Co.  v.  Port  Wardens  (6 

lb.  31)  540 

Texas  v.  Chiles  (7  lb.  700)  520,  521 
Thompson  v.  Pacific  R.  R.  (9  lb. 

579)  536 

Tomlinson  v.  Jessup  (15  lb.  454)     545 

U.  S.  v.  Klein  (13  lb.  128)  546 

v.  Railroad  Co.  (17  lb.  322)    535 

Veazie  Bank  v.  Fenno  (8  lb.  533)  533, 

534 

Walker  v.  Whitehead  (16  lb.  314)  545 
Ward  v.  Maryland  (12  lb.  418)       525, 

538 
Washington  Univ.  v.  Rouse  (8  lb. 

439)  544 

White  v.  Hart  { iS  lb.  647 J  544 

Woodruff  v.  Parham  (8  lb.  123)       538 


TREATISES    AND    TEXT   BOOKS   CITED. 


Pag« 

American  Law  Register,  Vol.  6.  N.  S 483 

Annals  of  Congress 486 

Appleton's  American  Cyclopedia 65,  136 

Austin,  Lectures  on  Jurisprudence 2,  6,  7,  8,  67 

Binney,  Horace,  The  Privilege  of  the  Writ  of  Habeas  Corpus,   .        .        474 
Brownson,  0.  A.,  American  Republic,      ....  .  23 

Chase,  Judge,  Trial  of 486 

Chitty's  Criminal  Law, 461,  465 

Cockburn,  Ld.  C.  J.,  Charge  in  Queen  v.  Nelson,         ....        478 

Coke's  Institutes, 455 

Digest,  The  1 

Elliott's  Debates, 54,  56,  58,  85,  427,  428,  432,  493 

Falck,  Cours  d'  Introduction  Generate  a  l'etude  du  Droit,        .        .        2,  107 

Federalist,  The 107,  120,  143 

Finlason  on  Martial  Law, 477 

Hautefeuille,  Des  Droits  et  des  Devoirs  des  Nations  Neutres    .        .      39,  208 

Heffler,  Droit  International  Public, 39 

Hurd,  John  C,  Law  of  Freedom  and  Bondage,        ....  23 

Institutes,  The 383 

Jameson,  The  Constitutional  Convention, 6,  37,  38 

Judiciary  Committee,  House  of  Rep.,  Minority  Report  of,  Nov.  1867,        483 

Lieber,  Civil  Liberty  and  Self  Government, 107,  130 

Lieber,  Political  Ethics, 107 

Madison's  Debates, 493 

Marsh,  George  P.,  Essays  in  the  "  Nation," 23 

Martens,  Pre'cis  du  Droit  des  Gens,  39 

Montesquieu,  Esprit  des  Lois, 110 

Ortolan,  Diplomatie  de  la  Mer, 39,  272,  274 

Peck,  Judge,  Trial  of 487 

Phillimore,  International  Law, 273 

Pinheiro-Ferreira,  Notes  to  Martens, 40 

Pomeroy,  Introduction  to  Municipal  Law,         .  .      67,  105,  129 

Princeton  Review,  ....  ....  43, 61 

Savigny,  Traite  de  Droit  Romain, .  2 

Story  on  the  Constitution, .  85,  36, 88 


INTRODUCTORY   CHAPTER 


§  1.  The  systematic  juridical  writers  among  the  Romans, 
whose  works  formed  the  basis  of  the  compilations  made  by 
Justinian,  separated  the  entire  positive  jurisprudence  into  two 
grand  and  opposed  departments :  the  Public  Law,  and  the 
Private  Law  (jus  publicum,  jus  privatum').  The  Digest 
thus  states  the  division : 1  "  Hujus  studii  [juris]  duae  sunt 
positiones  ;  publicum  et  privatum.  Publicum  jus  est  quod  ad 
statum  rei  Romanaa  spectat ;  privatum,  quod  ad  singulorum 
utilitatem :  sunt  enim  quaedam  publice  utilia,  quaedam  priva- 
tim."  Most  of  the  modern  jurists  of  Europe  make  the  same 
classification.  Mr.  John  Austin,  the  profoundest  writer  on 
general  jurisprudence  which  England  has  produced,  rejects 
this  division  as  useless  and  even  perplexing.  Before  Austin, 
Blackstone,  in  his  Commentaries,  had  suppressed  this  separa- 
tion of  departments,  and  had  treated  most  of  those  matters 
which  are  generally  ranged  under  the  head  of  Public  Law,  as 
parts  of  the  law  pertaining  to  persons.  There  can  be  no 
doubt  that  Blackstone's  method  has  the  merit  of  simplicity 
when  the  object  is  to  present  either  an  outline,  or  a  complete 
detailed  statement,  of  the  positive  rules  which  make  up  the 
entire  internal  or  municipal  jurisprudence  of  a  particular 
nation.  But  when  it  is  designed  to  present  simply  some  por- 
tion of  this  whole,  the  division  made  by  the  Roman  jurists,  and 
followed  by  a  majority  of  the  moderns,  is  not  only  convenient 
and  natural  but  necessary. 

§  2.  Assuming,  therefore,  the  department  of  Public  Law  aa 
opposed  to  that  of  Private  Law,  we  inquire  what  portion  of 
i  Dig.  Lib.  1,  tit.  1,  §  2. 


2  INTRODUCTION. 

the  entire  body  of  a  positive  national  jurisprudence  docs  it  em- 
brace  ;  in  other  words,  what  does  a  study  of  Public  Law 
involve.  Here  we  shall  discover  a  marked  diversity  among 
theoretical  writers.  Austin  says  : *  "  Public  Law,  in  its  strict 
and  definite  signification,  is  confined  to  that  portion  of  law 
which  is  concerned  with  political  conditions;  that  is  to  say, 
with  the  powers,  rights,  duties,  capacities,  and  incapacities, 
which  are  peculiar  to  political  superiors,  supreme  and  subordi- 
nate." The  Roman  writers,  in  addition  to  the  subject  of  polit- 
ical conditions,  included  also  that  of  criminal  law.  Savigny, 
certainly  one  of  the  ablest  and  most  exhaustive  of  modern 
writers,  describes  Public  Law  as  containing  those  rules  which 
establish  the  various  political  conditions  or  status,  those  which 
define  crimes  and  apportion  their  punishments,  and  those  which 
regulate  civil  as  well  as  criminal  procedure.2  The  ideas  which 
lie  at  the  basis  of  this  classification  are,  that  the  state  directly 
interferes,  through  its  officials  and  in  its  organic  capacity,  with 
criminal  and  civil  procedure,  and  that  crimes  affect  the  state 
as  a  body  politic  in  a  higher  and  more  important  sense  than 
they  do  the  private  individuals  whose  rights  may  have  been 
infringed  upon  by  the  offender,  so  that  the  punishment  of  the 
crime  is  intrinsically  a  public  duty  and  a  public  act. 

§  3.  The  analysis  of  Falck  is  theoretically  more  accurate 
and  practically  more  convenient  than  any  of  the  preceding, 
and  I  shall  adopt  it  as  setting  forth  the  proper  bounds  of  Pub- 
lic Law,  and  the  fundamental  doctrines  upon  which  the  idea 
of  the  state  and  of  a  law  for  the  state  is  based.3 

§  4.  The  members  of  a  civil  society  are  divided,  in  respect 
to  the  manner  in  which  they  are  subjected  to  laws,  into  those 
who  command  and  those  who  obey  ;  and  upon  this  division 
rests  the  distinction  of  Public  Law  and  Private  Law.  In 
strictness,  every  individual  person,  in  so  far  as  he  obeys,  is,  in 

1  Lectures  on  Jurisprudence,  Vol.  2,  p.  435,  Lect.  XLIV. 

2  Traite  de  Droit  Romain,  Vol.  1,  chap.  ii.  §  9. 

3  See  Cours  dy  Introduction  Gmerale  a  I'liitude  du  Droit,  par  N.  Falck, 
^Juristiche  Encyklopadie),  chap.  1,  §§  26,  40,  41.  The  sections  4-12  in 
the  text  are  substantially  taken  from  Falck,  with  some  omissions,  and  not 
»  little  amplification. 


INTRODUCTION.  3 

respect  to  such  act  of  obedience,  and  in  respect  to  his  duty  to 
obey,  a  private  person  ;  and  every  commandment  in  a  civil 
society  primarily  flows  from  the  totality  of  its  members,  — 
from  the  public,  —  but  is  formally  uttered  by  some  repre- 
sentatives of  that  totality,  be  these  representatives  monarchs, 
hereditary  or  elected  delegates,  or  electors  who  choose  these 
delegates.  The  Public  Law,  therefore,  embraces  all  those 
precepts  which  impose  duties  or  confer  rights  upon  the  politi- 
cal superiors  in  the  state,  supreme  or  subordinate  ;  upon  those 
who  organically  represent  the  state  as  a  body  politic.  Those 
rules  which  control  the  subject  members  of  the  state  in  their 
relations  with  the  whole  body,  ought  in  strictness  to  be  ranged 
in  the  Private  Law  ;  but  as  these  relations  are  public  in  their 
nature,  the  rules  themselves  are  also  considered  as  a  part  of 
the  Public  Law. 

§  5.  A  conception  of  the  Public  Law  as  a  distinct  division 
of  the  entire  body  of  jurisprudence  will  be  made  clearer  by 
ascertaining  what  great  departments  are  included  in  the  Pri- 
vate Law.     These  departments  may  be  thus  enumerated  : 

1st.  The  Civil  Law  proper  (droit  civil,  Civilrecht)  ;  con- 
sisting of  (a)  the  Law  as  to  Persons  (jura  personarum)  ; 
(b)  the  Law  as  to  Things  (jura  rerurn)  ;  (c)  the  Law  as  to 
Obligations. 

2d.  Ecclesiastical  Law  (jus  ecclesiasticuni)  in  those  coun- 
tries where  the  Church  is  regarded  as  having  a  legal  status, 
as  something  more  than  a  voluntary  association.  This  sub- 
department  does  not  exist,  in  the  United  States,  but  does  in 
England,  and  generally  throughout  Europe. 

•id.   Supervisory  Law  (droit  de  la  Police,  Polizeirecht). 

4th.  The  Law  as  to  Crimes  and  Punishments. 

5th.  The  Law  as  to  Civil  and  Criminal  Procedure.  The 
Private  Law,  therefore,  includes  those  rules  which  define  the 
rights,  powers,  capacities,  and  incapacities  of  various  classes 
of  persons,  private,  domestic,  or  professional  ;  the  rights  of 
oroperty  in  all  its  grades  which  may  be  had  in  or  over  things; 
and  the  rights  which  flow  from  contracts  and  all  other  sources 
of  obligations  between  determinate  individuals.  It  also  em- 
oraces  a  description  of  those  delicts  or  offences  which  the  state 


i  INTRODUCTION. 

punishes,  and  which  are  called  crimes,  together  with  the  means 
and  methods  by  which  these  crimes  are  punished,  and  those 
by  which  civil  rights  and  duties  are  protected  and  enforced. 
Finally,  under  the  denomination  of  Police  are  ranged  all  those 
governmental  means  proper  to  maintain  good  morals,  public 
security,  order,  health,  and  the  like;  in  general,  all  those 
means  which  augment  the  convenience  and  promote  the  tran- 
quillity of  social  life. 

It  should  be  carefully  noticed  that,  although  the  state  by 
virtue  of  its  sovereignty  is  the  source  of  all  these  rules,  and, 
at  the  call  of  a  person  interested,  interferes  by  certain  classes 
of  functionaries,  such  as  magistrates,  judges,  administrative 
officers,  in  enforcing  duties  and  protecting  rights,  and  inter- 
feres directly  in  its  own  name  and  by  its  own  authority  in 
punishing  criminals  and  exercising  social  supervision,  yet  all 
these  rules  primarily  and  essentially  concern  the  members  of 
the  civil  society  in  their  private,  individual,  separate  capaci- 
ties ;  the  state  is  not  involved  in  its  separate,  organic  unity  as 
a  body  politic  ;  although  interested,  it  is  rather  so  incidentally 
than  directly. 

§  6.  The  Public  Law,  on  the  other  hand,  touches  and  affects 
the  state  in  its  organic  unity.  It  regards  that  state  as  one 
body  politic  in  its  juridical  relations,  whether  those  relations 
be  with  its  own  subjects,  or  with  other  independent  states.  As 
these  two  classes  of  relations  do  and  ever  will  exist,  the  Pub- 
lic LaAv  may  properly  be  divided  into  the  two  corresponding 
departments  :  Political  Law,  or  State  Law  properly  so  called 
(Staatsrecht),  and  International  Law  (jus  inter  gentes,  Viilk- 
errecht).  The  department  of  International  Law  may  be  dis- 
missed with  this  mention  as  entirely  foreign  to  the  purposes 
of  this  work. 

§  7.  As  an  aid  in  ascertaining  with  definiteness  what  classes 
of  rules  properly  fall  within  the  division  of  Political  Law,  it 
will  be  advantageous  to  advert  briefly  to  the  essential  feature 
of  the  state  under  its  necessary  conditions.  This  essential 
feature,  without  which  the  state  cannot  exist,  consists  in  the 
possession  of  sovereign  power.  The  nature  of  sovereignty, 
both  in  respect  to  the  external  and  the  internal  relations  of 


INTRODUCTION.  O 

the  state,  will  be  fully  developed  in  a  subsequent  chapter ;  it  is 
sufficient  now  to  say  that  the  sovereign  power  consists  in  the 
collective  will  and  in  the  faculty  of  wielding  and  disposing 
those  forces  which  obey  that  will.  This  sovereign  power 
should  be  conceived  of  as  indivisible  in  its  nature,  and  as  ap- 
pertaining to  the  totality  of  members  of  the  body  politic —  to 
the  entire  people  :  for,  except  under  peculiar  circumstances, 
there  exists  no  reason  for  excluding  from  participation  in  the 
common  will  and  action  either  one  or  many  of  those  who  di- 
rectly take  part  in  the  political  society. 

§  8.  If  this  idea  of  the  primary  source  of  sovereignty  can 
be  accepted  by  the  German  theorist,  by  Americans  it  should 
certainly  be  regarded  as  axiomatic,  and  as  lying  at  the  very 
bottom  of  our  conceptions  of  the  state,  and  of  the  political 
structure  Ave  have  erected  in  accordance  with  those  concep- 
tions. The  expression,  All  power  proceeds  from  the  People, 
is  trite  enough,  but  the  full  significance  of  the  expression  is 
perhaps  not  sufficiently  apprehended.  According  to  the  Amer- 
ican theory,  here  reproduced  by  Falck,  sovereignty  does  not 
reside  in  legislators,  or  executives,  who  are  chosen,  nor  in 
the  body  of  electors  who  immediately  choose,  but  in  the  total 
aggregate  of  persons  who  are  members  of  the  state,  and  who 
by  the  present  constituted  order  of  things  are  primarily  rep- 
resented by  the  existing  body  of  electors,  and  ultimately,  by 
the  legislative  and  executive  officers. 

§  9.  Although  it  is  truly  said  that  the  sovereignty  resides 
in  the  aggregate  of  members,  yet  in  states  of  a  certain  extent 
it  is  not  possible,  and  even  in  the  smallest  it  would  not  be 
convenient,  for  this  totality  of  the  people  to  deliberate  and 
act.  These  functions  of  deliberation  and  action,  which  con- 
stitute the  exercise  of  the  sovereign  power,  are  therefore  con- 
fided to  many,  or  to  one,  of  the  members  of  the  body  politic, 
ind.  in  that  case  it  is  often  said  of  these  persons  that  they 
possess  the  sovereign  power.  Practically,  there  is  nothing 
improper  in  this  form  of  expression,  so  long  as  the  constituted 
order  of  things  in  any  particular  state  subsists ;  the  totality 
having  delegated  their  capacity  to  deliberate  and  act  to  rep- 
resentatives, have    not  generally  reserved  to  themselves  any 


6  INTRODUCTION. 

leo-al  and  constitutional  right  to  recall  the  delegation  ;  such  re- 
call,  when  made,  must  be  extra-legal,  or  extra-constitutional, 
or,  in  other  words,  revolutionary.  How  far  this  is  true  in  ou* 
own  country,  will  lie  considered  in  the  sequel.  The  common 
expression  referred  to  is,  however,  theoretically  incorrect ;  in 
strictness  it  should  be  said  that  these  persons  are  entrusted 
with  and  wielfl  the  sovereign  power.1 

It  is  this  delegation  by  the  totality  of  the  function  of  exer- 
cising the  sovereign  power,  which  creates  the  necessity  of  es- 
tablishing a  fixed  rule  to  which  the  depositaries  of  this  power 
—  the  various  orders  of  actors  in  the  government  —  ought  to 
conform  in  their  relations  with  other  members  of  the  state  ;  or, 
in  other  words,  there  thence  arises  the  possibility  of  a  constitu- 
tion in  a  juridical  sense  of  the  term.  As  a  consequence,  a  gov- 
ernmental power,  not  possessing  sovereignty  in  itself,  but  only 
wielding  it  by  delegation,  cannot,  according  to  the  very  con- 
ception of  its  existence,  be  unlimited,  absolute  ;  although  it  is 
not  indispensable  that  the  rules  which  restrain  it  should  be 
formally  expressed.  In  the  United  States,  these  rules  are 
formally  expressed  ;  in  England,  they  are  not.  That  which 
tve  call  an  unlimited,  absolute  government  is  so  in  appearance 
only  :  it  is  one  whose  acts,  for  the  time  being,  do  not  depend 
for  their  validity  upon  any  open  expression  of  assent  by  the 
people,  or  by  their  direct  representatives.  The  government, 
on  the  other  hand,  which  we  usually  call  limited,  is  one  that 
is  subjected  to  this  dependence. 

§  10.  This  brief  analysis  of  the  nature  and  mode  of  exercise 
of  that  sovereign  power  which  is  the  essence  of  a  state,  will 
enable  us  definitely  to  fix  the  limits  of  the  department  of  ju- 
risprudence called  Political  Law.  That  department  must  be 
concerned  with  the  extent,  manner,  and  means  of  the  exer- 

1  See  Jameson,  The  Constitutional  Convention,  chap.  ii.  §§  21-24. 
See,  also,  Austin,  Lectures  on  Jurisprudence,  Vol.  1,  Lect.  VI.  Austin 
leems  to  me  to  have  fallen  into  grave  errors  while  discussing  this  whole 
subject.  He  either  too  much  narrows  the  meaning  of  the  term  sovereign 
power,  and  confounds  it  with  the  mere  capacity  to  exercise  that  power  ac- 
2ording  to  the  constituted  order  of  things  in  a  particular  state ;  or  else  he 
utterly  ignores  the  idea  that  sovereignty  resides  in  the  totality  of  mem 
bers  o"  a  state  as  a  political  unit. 


INTRODUCTION.  7 

eise  of  sovereign  power,  so  far  as  this  exercise  is  confined  to 
the  interior  relations  of  the  state.  The  complete  theory  of 
these  interior  relations  has  a  triple  object :  First,  the  funda- 
mental organization  of  the  whole  of  the  relations  which  sub- 
sist between  the  government  and  the  people ;  secondly,  the 
established  order  of  the  functions  by  which  the  action  of  the 
political  power  with  respect  to  the*  people  may  be  carried  on  ; 
thirdly,  the  manner  of  procuring  the  means  and  physical 
forces  which  the  action  of  the  government  demands.  This 
theory  in  its  entirety  is  called  Political  Law.  In  a  strict 
sense,  therefore,  Political  Law  is  the  science  which  investi- 
gates and  describes  the  form  and  constitution  of  the  state, 
and  which  consequently  responds  to  the  three  following  ques- 
tions :  1st.  In  whose  hands  is  placed  the  exercise  of  the  sov- 
ereign power  ?  2d.  To  what  laws  is  this  exercise  subjected  ? 
3d.  By  what  means  and  combinations  is  the  observance  of 
these  laws  assured  ? 

§  11.  The  actual  constitutions  of  states  have  been,  and  are, 
exceedingly  varied  ;  and  the  political  forms  commonly  admit- 
ted—  democracy,  aristocracy,  and  monarchy  —  do  not  express 
all  the  differences  which  appear  in  fact,  because  they  refer 
only  to  the  number  of  persons  who  exercise  the  power,  and 
not  at  all  to  their  juridical  relations.  Thus  the  government 
of  our  own  country  cannot  with  accuracy  be  referred  to  either 
of  these  divisions  as  they  are  commonly  understood.  It  is 
certainly  not  a  democracy ;  and,  although  not  in  outward  form 
an  aristocracy  or  a  monarchy,  it  is  subjected  to  the  same  limi- 
tations in  kind,  but  far  greater  in  degree,  as  those  which  are 
usually  placed  upon  the  latter  species  of  government.  Indeed, 
Austin,  with  theoretical  correctness,  ranges  limited  monarchies 
and  representative  republics  under  the  head  of  aristocracies.1 
In  those  constitutional  forms  of  government  only  which  may 
be  essentially  referred  to  the  group  of  aristocracies,  or  to  that 
of  monarchies,  can  there  be  any  question  of  a  law  which  lim- 
its the  political  power,  and  consequently  of  means  and  combi- 
nations to  ensure  the.  maintenance  of  this  law.  In  a  pure  de- 
mocracy, such  a  law  is  simply  impossible  ;  for,  as  the  totality 
1  Lectures  on  Jurisprudence,  Vol.  1,  pp.  191-200,  Lect.  VI. 


8  INTRODUCTION. 

in  whom  alone  resides  sovereign  power  also  wield  that  power 
directly,  they  can  only  be  self-restrained  in  its  exercise :  no 
law  can  be  imposed  upon  the  acts  of  a  sovereign.1  In  fact, 
the  recognition  of  a  fundamental  limitive  law  has  ordinarily 
resulted  in  the  selection  of  a  body,  more  or  less  numerous, 
which  represents  the  people.  But,  as  we  have  seen,  the  action 
of  this  body  cannot  imply  a  participation  by  it,  as  such  repre- 
sentative body,  in  the  sovereign  power.  The  true  import  of 
this  form  of  organization  is,  that  the  exercise  of  certain  rights 
of  sovereignty  —  legislation  or  administration,  or  both  —  is 
subordinated  to  the  assent  of  these  representatives. 

§  12.  Political  Law,  as  thus  described,  is  finally  divided 
into  General,  which  presents  the  theory  of  the  state  in  gen- 
eral ;  and  Special,  which  confines  itself  to  the  constitution  of 
a  particular  state.  In  the  same  manner,  the  science  of  Juris- 
prudence itself,  of  which  Political  Law  is  a  part,  is  separated 
into  General,  which  treats  of  positive  law  in  the  abstract ; 
and  Special,  which  is  occupied  with  the  entire  municipal  law 
of  some  determinate  nation. 

§  13.  The  object  of  the  present  work  is  the  investigation  of 
Political  Law  in  one  of  its  special  forms,  —  that  of  our  own 
country,  —  the  Constitution  of  the  United  States  of  America. 
As  the  People  of  the  United  States,  the  possessors  of  sover* 
eign  power,  have  arranged  their  governmental  relations  by 
intrusting  the  management  of  a  portion  to  the  central  national 
government,  and  another  portion  to  the  governments  of  the 
respective  states,  an  exhaustive  treatment  of  the  subject 
would  require  that  I  should  separately  examine  not  only  the 
Constitution  of  the  United  States,  but  also  that  of  each  state. 
Thus  only  should  we  ascertain  the  entire  scope  of  those  juridi- 
cal relations  which  subsist  between  the  whole  people  and  their 

1  Austin  is  certainly  correct  in  his  proposition  that  the  sovereign  cannot 
be  compelled  by  law ;  his  error  is  in  determining  who  is  the  sovereign. 
Were  his  positions  true,  the  result  would  be  inevitable  that,  in  the  United 
States,  there  was  absolutely  no  sovereign ;  for  all  classes  of  rulers,  national 
and  state,  are  limited  by  precepts  which  have  all  the  attributes  of  positive 
!aw;  and  if  the  people,  in  whose  name  these  commands  are  assumed  to  be 
uttered,  be  not  the  sovereign,  we  have  none.  Indeed,  Austin  seems  prac- 
tically to  be  dri'en  to  this  conclusion. 


INTRODUCTION.  9 

crovtUTiment.  But  this  method  of  treatment  cannot  conven- 
iently  be  pursued.  I  shall  confine  myself  to  the  Constitution 
of  the  United  States  as  a  unit,  and  shall  refer  to  the  state 
constitutions  so  far  only  as  they  may  be  implicated  with  the 
national  government.  I  shall  inquire  within  what  sphere  the 
state  governments  may  legitimately  act,  but  farther  than  this 
cannot  go.  What  action  has  been  taken  by  the  inhabitants 
of  a  particular  commonwealth  must  be  ascertained  by  the 
student  of  local  law. 

§  14.  The  plan  adopted  for  the  present  work  does  not  re- 
quire, nor  even  permit,  me  to  enter  at  large  into  the  field  of 
General  Political  Law.  Any  extended  inquiry  into  the  na- 
ture of  the  state  and  of  government  in  the  abstract,  into  the 
advantages  or  disadvantages  of  particular  forms,  or  even  into 
the  merits  or  demerits  ot  special  portions  of  our  own  Consti- 
tution, would  be  out  of  place,  and  will  not  be  attempted. 
This  work  is  not  intended  to  be  a  treatise  on  civil  polity.  But 
the  investigation  of  our  established  order,  and  the  interpreta- 
tion of  doubtful  clauses  in  the  organic  law,  will  require  some 
reference  to  these  more  general  topics.  So  far  as  may  be 
necessary  for  these  purposes,  and  as  incidental  to  the  general 
design,  such  reference  will  therefore  be  made.  There  are  in- 
valuable treatises  upon  General  Political  Law,  to  which  the 
student  may  be  referred ;  and  it  seems  both  unnecessary  and 
inexpedient  to  combine  the  two  methods  of  discussion  —  the 
abstract  and  the  special  —  in  a  single  work,  any  farther  than 
may  be  useful  for  explanation  and  illustration. 

But  there  is  another  and  stronger  reason  why  arguments  to 
convince  us  of  the  suitableness  or  unsuitableness  of  the  whole 
plan,  or  of  any  essential  feature  of  it,  are  unnecessary.  The 
nation  has  passed  the  point  in  its  history  when  any  other 
scheme  could  be  possible.  The  general  form  of  our  govern- 
ment, and  all  of  its  important  elements,  are  fixed.  They 
were  deliberately  and  finally  chosen  after  a  discussion  which 
surpassed  in  fulness  and  ability  any  other  that  had  ever  been 
oresented  to  a  people  as  an  aid  to  their  decision.  Before  the 
adoption  of  the  Constitution,  such  a  scrutiny  was  indispensa- 
ble.     An  appeal  was  made  to  the  fundamental   principles  of 


10  INTRODUCTION. 

government ;  the  merits  of  various  grants  and  limitations  of 
power,  and  of  various  forms  of  organization,  were  carefully 
canvassed.  The  question  presented  was,  Why  should  we,  the 
People  of  the  United  States,  choose  this  proposed  scheme  of 
government?  The  publications  of  the  day,  and  especially  the 
collection  of  letters  known  as  the  Federalist,  contain  an 
answer  to  this  inquiry.  But  now  this  Constitution  is  fixed  ; 
no  one  thinks  of  substituting  in  its  place  any  new  or  different 
form  of  government ;  no  one  suggests  any  fundamental,  or 
even  important,  change  in  its  detail.  By  it  the  nation  must 
stand  or  fall.  The  citizen  knows  its  excellencies  and  its  weak- 
nesses, its  capacities  and  its  omissions.  Such  as  it  is,  it  must 
continue  to  be  our  organic  law. 

This  Constitution  being  thus  accepted  as  a  fact,  and  univer- 
sally regarded  as  substantially  permanent,  neither  the  educated 
citizen  nor  the  professional  student  needs  to  ask,  with  much 
solicitude,  whether  any  particular  clause  is  better  or  worse 
than  some  other  which  might  have  been  incorporated  in  the 
instrument ;  he  needs  to  inquire  what  is  the  meaning  of  this 
clause,  and  what  powers  does  it  confer  or  limit,  and  how  does 
it  affect  the  relations  between  the  government  and  the  mem- 
bers of  the  body  politic.  All  the  aids  which  the  canons  of 
verbal  interpretation,  or  history,  or  analogies  with  other  forms, 
or  ethics,  can  contribute  to  the  correct  determination  of  this 
all- important  question,  may  be  freely  used  ;  indeed,  an  an- 
swer is  often  impossible  without  a  resort  to  some  or  all  of 
them.  There  can  be  no  doubt  that  the  People  are  strongly 
convinced  of  the  excellency  of  their  organic  law  ;  that  they 
will  not  yield  their  convictions  to  the  demands  of  any  theoriz- 
ers  ;  and  that  they  will  suffer  no  amendments  except  those 
which  shall  more  completely  carry  out  the  ideas  upon  which 
the  whole  is  based,  which  shall  supply  some  omission,  or  cor- 
rect some  inadvertency.  I  repeat,  the  Constitution  as  a  whole 
must  stand.  I  believe  that  nothing  but  external  violence  can 
overturn  it  ;  no  voluntary  act  of  the  people  will  displace  that 
accustomed  order  which  has  proved  to  them  so  beneficent. 

§  15.  Leaving,  therefore,  the  branch  of  General  Political 
Law,  the  general  ideas  of  government  and  of  Civil  Polity,  to 


INTRODUCTION.  11 

other  writers,  I  shall  confine  myself  substantially  to  the  Con- 
stitution of  the  United  States  as  it  stands ;  to  the  complicated 
organization  of  political  agents  to  whom  the  management  of 
the  government  is  confided ;  to  the  capacities,  incapacities, 
rights,  powers,  and  duties  which  have  been  conferred  upon 
those  agents  ;  to  the  questions  which  have  arisen  and  have 
been  settled  ;  and  to  those  which  have  been  discussed,  but 
have  not  yet  been  put  to  rest.  Or,  to  quote  the  language  of 
Falck,  I  propose  to  answer,  in  respect  to  the  United  States, 
the  three  questions  :  In  what  hands  has  the  exercise  of  the 
sovereign  power  been  placed  ?  To  what  law  has  this  exercise 
been  subjected  ?  By  what  means  and  combinations  has  the 
observance  of  this  law  been  assured  ? 

§  16.  How  must  such  a  design  be  accomplished  ?  In  what 
method  and  by  what  materials  must  such  a  purpose  be  carried 
out  ?  The  Constitution  of  the  United  States  is  peculiar ;  no 
other  one  has  existed  in  times  past,  or  exists  now,  resembling 
it.  The  manner,  form,  and  means  of  its  study  and  exposition 
must  therefore  be  very  different  from  those  which  would  be 
employed  in  treating  of  the  Political  Law  of  any  other  nation. 
The  Constitution  of  England  is  unwritten  and  traditional ;  it 
has  grown  up  by  a  historical  development,  and  the  historical 
element  must  enter  largely  into  its  discussion.  The  Constitu- 
tion of  France  is  written  and  formal,  so  far  as  the  mere  organ- 
ization of  the  departments  of  government  is  concerned ;  but, 
in  respect'  to  the  law  which  limits  those  departments,  it  is 
vague  and  indeterminate.  And  so,  if  we  should  examine  the 
organic  law  of  all  the  European  nations,  even  when  that  law 
is  written,  none  would  be  found  which  resembles  our  own. 

The  Constitution  of  the  United  States  is  peculiar  in  that  it 
is  all  written ;  that  it  has  nothing  of  tradition.  The  govern- 
ment and  the  people  go  to  the  instrument  itself  as  the  embodi- 
ment of  all  granted  functions  ;  the  past  is  resorted  to  only  for 
explanation  and  interpretation  of  the  written  word.  It  is, 
indeed,  in  all  respects,  a  statute,  —  a  statute  of  vast  and  sol- 
2mn  import,  enacted  in  the  name  of  the  people,  and  accepted 
oy  them  as  the  basis  of  all  other  legislation,  and  therefore  in- 
finitely transcending  all  in  importance  and  compulsive  force  ; 


12  INTRODUCTION. 

but  it  is  none  the  less  a  statute,  —  an  expression  of  legislative 
will  in  a  written  form. 

The  Constitution  is  peculiar  in  that,  while  it  is  full  and  ex- 
tends over  a  wide  field,  and  contains  a  large  amount  of  detail, 
and  expresses  in  a  written  form  all  the  powers  that  are  con 
ferred  upon  the  government,  it  is  nevertheless  not  complete 
and  exhaustive.  It  does  not  range  through  the  entire  extent 
of  governmental  action.  Conferring  powers  of  a  high  na- 
tional character,  and  absolutely  supreme  as  far  as  they  are 
granted,  it  withdraws  a  very  large  portion  of  governmental 
powers  from  the  agents  which  it  establishes,  and  thereby 
causes  the  juridical  relations  between  these  agents  and  the 
people,  in  respect  to  the  matters  thus  withdrawn,  to  be  a  mere 
negation.  In  short,  the  Constitution  is  a  written  code  creat- 
ing  functions  perfect  as  far  as  they  go  ;  but  the  code  is  partial, 
not  complete  ;  in  respect  to  much  which  occupies  the  attention 
of  European  governments,  it  is  silent. 

The  Constitution  is  peculiar  in  that  this  written  scheme  not 
only  organizes  and  constitutes  the  various  departments  of  gov- 
ernment, but  defines  and  limits  with  care  and  precision  all  the 
capacities  with  which  they  are  clothed.  It  establishes  a  law 
for  them  which  is  the  formal  and  authoritative  utterance,  in  a 
written  form,  of  the  will  of  the  people,  who  possess  sovereign 
power  ;  and  it  provides  efficient  means  for  assuring  the  obser- 
vance of  that  law. 

Finally,  the  Constitution  is  peculiar  in  that  it  furnishes  a 
method  by  which  the  people,  in  a  legal  and  constitutional 
manner,  may  partially  or  wholly  change  the  form  and  charac- 
ter of  their  government ;  obviating  the  necessity  of  revolu- 
tionary measures  in  case  the  plan  adopted  should  fail  of  ac- 
complishing the  high  purpose  for  which  it  was  designed. 

§  17.  In  discussing,  therefore,  the  powers,  capacities,  inca- 
pacities, rights,  and  duties  of  the  governmental  agents,  all  ap- 
peals to  general  ideas  of  civil  polity,  all  references  to  the  anal- 
ogies of  other  forms  and  other  nations  from  whom  we  may  be 
supposed  to  have  drawn  some  of  our  methods,  all  purely  his- 
torical deductions,  are  and  must  be  constantly  restrained  and 
limited  by  the  letter  itself  of  the  written  instrument.     On  the 


INTRODUCTION.  13 

other  hand,  this  written  instrument  is  so  much  one  of  enumer- 
ation rather  than  of  description  ;  is  so  much  an  expression 
of  general  grants  of  power  rather  than  the  embodiment,  in  a 
codified  form,  of  minute  detail,  —  that  an  appeal  to  history,  to 
the  analogies  of  other  political  organizations,  and  to  funda- 
mental ideas  of  civil  polity,  of  justice  and  equity,  is  not  en- 
tirely superseded,  nay,  is  often  absolutely  necessary.  The 
work  of  the  interpreter  is  not  alone  verbal ;  he  may,  to  a  con- 
siderable extent,  strengthen  his  conclusions  by  a  reference  to 
the  doctrines  of  General  Political  Law. 

§  18.  The  science  of  Political  Law,  as  applied  to  the  Con- 
stitution of  the  United  States,  demands  from  the  student,  the 
citizen,  and  the  legislator,  methods  and  qualities  similar  to 
those  which  are  requisite  for  the  lawyer  and  the  judge  in 
interpreting  and  expounding  the  terms  of  an  ordinary  statute. 
The  reasons  of  this  are  obvious  and  imperative.  The  canons 
of  verbal  interpretation  are  everywhere  the  same  in  sub- 
stance ;  they  only  vary  in  respect  to  the  chai'acter  of  the 
writing  to  whose  explanation  they  are  applied.  The  method 
and  habit  of  the  lawyer  are  essentially  identical  with  those  of 
the  historical  critic  or  the  biblical  student.  In  the  practical 
application  of  legal  principles  in  the  common  affairs  of  life, 
the  written  agreement,  the  deed,  the  testament,  the  statute, 
are  construed  by  the  aid  of  the  same  rules,  simply  because 
they  are  written.  The  written  constitution,  merely  because 
it  is  a  constitution,  can  form  no  exception.  The  most  that  can 
be  said  is,  that,  as  greater  interests  are  involved  which  affect 
the  state  rather  than  the  individual,  all  narrow  and  technical 
construction  should,  as  far  as  possible,  be  avoided  ;  the  nature 
of  the  writing  as  an  organic  law  should  be  allowed  its  full 
effect.  Still,  the  truth  remains,  that  the  habit  of  thought  of 
the  lawyer  is  necessary  to  a  correct  understanding  of  the  Con- 
stitution ;  and  as,  by  our  peculiar  organization,  the  courts  are 
called  upon  to  apply  this  fundamental  law  to  the  acts  of  legis- 
latures and  executives,  in  testing  the  validity  of  these  acts,  it 
follows  that  the  most  authoritative  expositions  of  the  Constitu- 
tion have  been,  and  are,  made  by  men  trained  in  their  profes- 
sion and  office  to  the  lawj^er-like  habit. 


14  INTRODUCTION. 

It  is  no  reproach  to  the  Political  Law  of  the  United  States 
that  this  method  of  study  is  necessary.  Certain  theorists 
have  complained  because  the  legal  spirit  has  influenced  Legisla- 
tors, judges,  and  jurists  in  their  exposition  of  the  Constitution. 
These  persons  have  entirely  failed  to  comprehend  the  nature 
of  our  form  of  government ;  to  discern  the  essential  differ- 
ences between  it  and  all  others  existing  or  past. 

It  may  be  that  an  unwritten,  traditional,  elastic  constitution, 
capable  of  continuous  development,  able,  like  the  Common 
Law,  to  adapt  itself  to  the  changing  needs  of  society  and  the 
state,  is  superior  to  the  written.  It  may  be  that  an  organic 
law  cast  in  the  mould  of  an  iron  code  has  intrinsic  defects 
which  expose  the  body-politic  to  grave  dangers.  Upon  this 
question  there  may  be  difference  of  opinion.  But  one  thing 
is  sure,  —  that  the  American  people  are  unanimous  in  prefer- 
ring their  own  written  form.  Indeed,  so  far  from  abandoning 
the  plan,  their  tendency  has  constantly  been  to  extend  and 
enlarge  it ;  and  state  constitutions,  as  remodelled  from  time 
to  time,  have  been  made  more  unyielding,  more  minute,  more 
like  an  elaborate  code.  This  tendency  is  no  doubt  to  be  re- 
gretted ;  its  effects  have  been  evil ;  it  should,  if  possible,  be 
resisted ;  but  it  conclusively  shows  that  a  written  constitution, 
with  all  its  results,  be  they  good  or  evil,  is  preferred  now  even 
more  decidedly  than  when  the  Convention  submitted  their 
labors  to  the  country  for  approval.  It  cannot  be  denied  that, 
by  deciding  in  favor  of  a  fundamental  law  contained  in  a  writ- 
ten instrument,  the  people  necessarily  adopted  with  it  the 
consequence  that  this  instrument  must  be  read,  interpreted, 
expounded,  in  the  same  manner,  by  the  same  means  and 
methods,  which  are  appropriate  to  all  other  legislative  acts.  In- 
deed, the  very  advantage  claimed  for  our  American  form  of 
constitution  is,  that  all  powers,  capacities,  and  duties  are  pre- 
cisely defined  by  the  written  word  ;  that  there  is  no  room  left 
for  sudden  or  even  gradual  encroachments  upon  the  rights  of 
the  citizen  ;  that,  the  writing  remaining  unaltered,  the  various 
departments  of  the  government  can  ever  be  held  to  these  plain 
utterances  of  the  people's  will. 

§  19.  But,  while  it  is  necessary  that  the  Constitution  should, 


INTRODUCTION.  15 

from  its  very  nature,  he  read  and  expounded  by  the  aid  of 
processes  which  the  lawyer  uses  in  interpreting  a  statute,  the 
lawyer's  technical  and  professional  knowledge,  training,  expe- 
rience, and  skill  are  by  no  means  required.  In  fact,  the  rules 
and  principles  of  verbal  criticism  are  essentially  the  same  when 
applied  to  all  writings  :  they  are  not  arbitrary,  but  are  based 
upon  reason,  and  may  be  easily  appreciated  and  employed  by 
all  persons  of  common  understanding.  The  layman  may  com- 
prehend the  true  meaning  of  a  testament  or  of  a  statute  as 
readily  as  a  lawyer  ;  but  both  would  arrive  at  the  result  in 
the  same  manner  ;  both  would  consciously  or  unconsciously 
apply  the  same  rules  to  the  resolution  of  a  doubt,  or  the  clear- 
ing up  of  an  obscurity.  The  great  mass  of  citizens,  the  elec- 
tors who  represent  and  act  in  the  name  of  this  body,  the  legis- 
lators who  are  chosen  to  carry  on  the  constructive  work  of  the 
government,  are  alike  competent  to  approach  the  organic  law 
in  the  true  spirit,  and  interpret  it  with  accuracy.  This  is  the 
chief  merit  of  our  type  of  constitution,  —  a  merit  which  is 
often  claimed  for  codes  of  private  law.  All  may  read,  all 
may  understand ;  the  only  uncertainty  will  be  that  which 
must  always  inhere  in  language,  which  can  never  be  an  abso- 
lutely perfect  medium  for  the  expression  of  thought. 

§  20.  But,  while  this  careful,  textual,  lawyer-like  mode  is 
indispensable  in  construing  the  fundamental  law  of  the  United 
States,  there  is  still  room  for  the  more  free,  wide,  and  states- 
manlike methods.  The  letter  of  the  instrument  is  not  so  im- 
perative as  to  shut  out  all  but  a  verbal  criticism.  The  whole 
field  of  political  action  ljot  being  occupied,  the  question  con- 
stantly arises,  what  is  the  limit  beyond  which  the  government 
may  not  pass.  The  grants  of  power  being  rather  enumerated 
than  described,  the  inquiry  must  continually  recur,  what  special 
acts  may  be  done  by  virtue  of  these  general  concessions.  To 
answer  these  all-important  questions  may  well  demand  the 
highest  resources  of  statesmanship  in  the  legislators  who  make, 
in  the  executives  who  administer,  and  in  the  courts  who  ex- 
pound, the  laws,  —  may  well  require  of  those  who  choose  these 
representatives  an  education  in  the  principles  of  civil  polity 
far  beyond  that  needed  by  any   other  people.     The  lessons 


10  INTEODUCTION. 

taught  by  history,  drawn  from  the  experience  of  other  nations, 
suggested  by  the  analogies  of  other  governments,  contained  in 
the  principles  of  justice  and  equity,  may  always  exert  their 
due  influence  upon  him  who  studies  and  expounds  our  Consti- 
tution. 

§  21.  It  is  evident,  then,  that  the  true  method  of  interpre- 
tation is  a  resultant  of  these  somewhat  divergent  forces,  —  a 
combination  of  the  precise,  strict,  verbal,  narrow  mode  of  the 
lawyer,  and  the  broader,  freer  habit  of  the  statesman.  The 
one  looks  mainly  at  the  letter,  disregarding  consequences, 
motives,  reasons  —  ita  lex  scripta  eat;  the  other  passes  by  the 
letter,  and  concerns  itself  with  great  principles,  with  consider- 
ations of  a  high  expediency,  with  far-reaching  national  results. 
From  the  very  commencement  of  the  present  government, 
there  have  existed  two  schools  who  represent  these  two  modes 
of  construction.  The  one  has  unduly  exalted  the  lawyer-like, 
the  other  the  statesman-like,  process.  Each  is  in  error,  and 
disasters  would  surely  follow  were  either  to  obtain  a  perma- 
nent supremacy.  With  the  one  school,  the  Constitution  loses 
its  character  as  the  fundamental,  organic  law  of  a  government, 
and  sinks  to  the  level  of  an  ordinary  private  statute,  to  be  ex- 
pounded with  all  the  technical  and  literal  precision  which 
would  be  appropriate  to  a  penal  code.  By  them  the  canons 
of  verbal  criticism  are  invoked  without  any  regard  to  the  ob- 
ject and  nature  of  the  instrument  to  which  they  are  applied. 
With  the  other  school,  the  Constitution  loses  its  character  of 
law  at  all,  and  becomes  simply  a  starting-point  from  which  to 
construct  a  system  unwritten  and  traditional.  The  (me  would 
cramp  and  dwarf  the  energies  of  a  growing  nation ;  the  other 
would  remove  all  the  barriers  which  have  been  set  up  lest 
those  energies  should  finally  become  self-destructive.  Com- 
bine the  two,  and  the  essential  ideas  of  a  positive  law,  and  of 
i  political  society  as  the  subject  of  that  law,  are  preserved  ; 
the  safety  and  stability  of  the  government  are  ensured  ;  the 
national  development  may  go  on  uninterrupted  by  arbitrary 
restraints,  and  unbroken  by  sudden  shocks.  Such  has  thus 
far  been  the  method  adopted  by  legislators,  executives,  ana 
courts,  and  approved  by  the  people  :  let  us  hope  that  it  may 
never  be  abandoned. 


INTRODUCTION.  17 

§  22.  The  study  of  their  Political  Law  is  of  the'  highest 
importance  to  American  lawyers  and  American  citizens.  In 
no  other  country  is  the  legal  profession  placed  under  such  an 
imperative  duty  to  become  familiar  with  this  special  branch  of 
jurisprudence.  The  Constitution  of  the  United  States  is  a 
law  to  legislatures,  to  executives,  and  to  courts  both  of  the 
nation  and  of  the  states  ;  the  constitution  of  each  common- 
wealth is,  in  like  manner,  a  law  to  its  local  authorities.  Every 
statute,  every  administrative  act,  every  exercise  of  jurisdiction, 
must  be  tested  by,  and  conform  to,  this  fundamental  utterance 
of  the  people's  sovereign  will.  Hence  the  bar  and  the  bench 
are  called  upon  to  exercise  a  function  unknown  in  other  coun- 
tries, —  that  of  pronouncing  upon  the  validity  of  a  statute  by 
comparing  it  with  the  Constitution,  and  by  deciding  as  to  the 
power  of  the  legislature  to  enact  it.  English  courts  are  con- 
stantly compelled  to  construe  and  interpret  ;  but  for  them  to 
declare  an  act  of  Parliament  void,  from  a  want  of  authority  in 
that  body,  would  be  an  anomaly  indeed.  Private  rights  and 
duties  are  affected  by  all  governmental  acts  ;  and  the  Ameri- 
can lawyer  cannot  meet  the  requirements  of  his  profession, 
cannot  maintain  the  private  interests  intrusted  to  him,  unless 
he  is  acquainted  not  only  with  the  text  of  the  Constitution, 
but  also  with  the  judicial  and  legislative  interpretation  which 
forms  the  mass  of  our  Political  Law. 

§  23.  The  motives  which  should  urge  the  citizen  are  far 
higher  and  more  imperative  than  those  addressed  to  the  law- 
yer. Second  only  to  his  duty  to  God,  stands  that  to  his  coun- 
try ;  the  welfare  of  the  body-politic  has  a  stronger  claim  upon 
him  than  even  that  of  family  or  of  self.  How  wonderfully 
has  this  truth,  forgotten  perhaps  for  a  while,  been  recognized, 
accepted,  and  acted  upon  within  the  last  six  years!  But,  by 
the  organization  of  our  government,  the  welfare  of  the  body- 
politic  is  committed  directly  to  the  citizen.  Even  if  not  an 
elector,  he  may  become  one  ;  and,  at  all  events,  he  may  exert 
a  controlling  influence  which  goes  to  make  up  a  part  of  that 
public  opinion  which  carries  along  with  it  electors  and  the 
elected.  Weighty  as  is  the  obligation  resting  upon  all  citizens, 
*t  assumes  a  deeper  and  more  imperative  nature  as  it  affects 
2 

/ 


18  INTRODUCTION. 

the  educated  classes,  and  especially  the  young  men  and  young 

women  who  are  preparing  lor  the  duties  of  citizenship  by  the 
culture  received  from  the  college,  the  academy,  the  school. 
Their  very  knowledge  and  discipline  should  fit  them  to  give 
tone  and  character  to  public  opinion  ;  to  lead,  and  not  to  he 
driven,  in  all  political  movements.  Our  higher  institutions  of 
learning,  and  our  means  for  a  widely  diffused  popular  educa- 
tion, will  have  miserably  failed  in  attaining  the  most  important 
object  for  which  they  were  designed,  if  they  do  not  make 
young  men  and  women  better,  wiser,  truer,  stronger  Ameri- 
can citizens.  The  customary  course  of  study  need  not  be 
disturbed  ;  it  performs  its  good  office ;  it  gives  mental  vigor, 
and  imparts  knowledge.  But  some  direct  and  systematic  in- 
struction in  the  Political  Law  of  the  United  States  should 
form  a  necessary  part  of  the  work  done  not  only  in  every  col- 
lege, but  in  every  academy  and  common  school.  That  this 
study  has  not  been  and  is  not  thus  universal,  is  glaringly  in- 
consistent with  the  ideas  upon  which  our  government  is  based ; 
it  is  antagonistic  to  those  principles  of  popular  education  which 
have  come  to  be  regarded  as  axiomatic  ;  it  has  been  at  least 
the  partial  cause  of  disasters  that  cannot  be  measured,  of  evils 
that  well-nigh  destroyed  the  nation  itself. 

§  24.  The  analysis  given  at  the  commencement  of  this 
chapter  suggests  the  general  topics  which  fall  within  the  de- 
partment of  Political  Law.  In  applying  these  abstract  notions 
to  our  own  country,  they  must  be  modified  by  the  peculiar 
character  of  the  Constitution,  by  the  anomalous  and  compli- 
cated nature  of  the  political  organization,  by  the  double  distri- 
bution of  governmental  functions,  and  by  the  definite  limits 
placed  upon  the  exercise  of  powers  both  by  the  nation  and  by 
the  respective  states. 

In  pursuing  my  design,  the  work  will  be  divided  into  three 
parts,  each  to  a  certain  extent  independent  of  the  others. 

Part  First  will  consider  and  answer  the  question,  What  is 
the  Constitution,  and  by  whom  was  it  created  ?  —  or,  in  other 
words,  will  treat  of  the  essential  character  of  the  organic  law 
and  of  the  body-politic  which  lies  behind  it. 

Part  Second  will  consider  and  answer  the  question,  In  whaJ 


INTRODUCTION.  19 

manner  and  by  whom  is  the  Constitution  to  be  authoritatively 
construed  and  interpreted  ?  —  or,  in  other  words,  will  treat  of 
the  means  and  combinations  for  assuring  the  observance  of  the 
fundamental  law. 

Part  Third  will  answer  the  question,  What  powers  and 
duties  are  conferred  or  imposed  upon  the  national  govern- 
ment, and  what  conferred  or  imposed  upon  the  several 
states  ? 


PART    FIRST. 


WHAT  IS  THE  CONSTITUTION,  AND  BY  WHOM  WAS  IT  CREATED? 
THE  ESSENTIAL  NATURE  OF  THE  ORGANIC  LAW,  AND  OF  THE 
BODY-POLITIC   WHICH    LIES   BEHIND  IT. 


CHAPTER   I. 

STATEMENT     OF     THEORIES  :  —  NATIONALITY     OF    THE     UNITED 

STATES. 

§  25.  It  does  not  require  any  extended  argument  to  con- 
vince vis  that  the  question  to  be  discussed  in  the  first  part  of 
this  work  lies  at  the  basis  of  all  others.  Upon  the  conceptions 
we  form  of  the  essential  character  of  this  organic  law,  and  of 
the  body -politic  which  lies  behind  it,  must  depend  our  notions 
of  all  the  relations  of  the  United  States  and  the  several  com- 
monwealths to  each  other,  and  of  all  the  functions  of  the  gen- 
eral and  local  governments.  Is  this  Constitution  the  funda- 
mental  law  of  a  nation  ?  Then  the  government  must,  to  some 
extent,  possess  national  and  comprehensive  powers.  Is  it,  on 
the  other  hand,  a  mere  league,  treaty,  or  articles  of  agreement 
and  federation  between  sovereign  and  independent  nations, 
who  thereby  delegate  a  portion  of  their  inherent  powers  to 
the  agents  thus  constituted  ?  Then  the  powers  must  be  lim- 
ited by  the  very  letter  of  the  instrument  which  creates  this 
agency,  and  are  virtually  under  the  management  and  control 
of  the  sovereigns  who  have  delegated  them.  We  are  met, 
then,  at  the  very  threshold  of  the  political  structure  we  are  to 
examine,  by  this  most  momentous  consideration  ;  and  to  it  we 
should  give  our  careful  and  candid  thought  and  attention. 
The  views  we  shall  adopt  will  give  shape  and  color  to  all  our 


THEORIES   PROPOSED   AND  ADVOCATED.  21 

subsequent  opinions  upon  the  various  matters  which  shall  come 
under  discussion.  If  we  shall  fall  into  error  here,  that  mistake 
will  follow  us  through  our  entire  course  of  exposition.  If  we 
are  correct  here,  we  shall  hardly  deviate  far  from  the  true 
path  in  our  future  progress. 

§  26.  The  statesmen  and  jurists  of  our  country  have  per- 
ceived the  necessity  of  establishing  this  fundamental  point,  and 
have  devoted  to  the  solution  of  the  question  all  the  resources 
of  learning,  eloquence,  and  partisanship.  It  was  first  mooted 
during  the  existence  of  the  Confederation  ;  it  was  the  subject 
of  animated  debates  in  the  Convention  ;  it  was  discussed  with 
extremest  zeal  while  the  Constitution  was  before  the  people, 
awaiting  its  adoption  ;  it  formed  the  subject  of  the  first  judi- 
cial investigation  made  by  the  Supreme  Court  into  the  powers 
of  the  o-eneral  o-overnment :  it  has  since  received  the  attention 
of  all  the  public  men  who  have  directed  the  course  of  popular 
opinion ;  it  might  have  been  considered  as  settled,  so  far  as 
united  legislative,  executive,  and  judicial  construction  can  es- 
tablish any  controverted  doctrine  ;  but  it  again  arose  in  these 
late  years,  and  passed  from  the  forum  and  the  senate-house, 
from  the  arena  of  peaceful  debate  and  the  contests  of  intellect, 
to  the  arbiti'ament  of  the  battle,  to  the  fierce  discussion  of  the 
battery  and  the  bayonet,  to  be  finally  and  forever  put  to  rest 
by  the  force  of  the  nation  wielded  in  solemn  war. 


SECTION  I. 

THEORIES   WHICH   HAVE   BEEN   PROPOSED    AND   ADVOCATED. 

§  2T.  If  we  examine  and  compare  the  various  writings  of 
public  men  and  the  arguments  and  judgments  of  courts,  which 
have  been  put  forth  at  intervals  during  the  existence  of  the 
present  Union,  we  shall  discover  that  three  theories  have  been 
proposed  and  advocated,  by  different  schools  of  statesmen  and 
lurists,  in  relation  to  the  essential  character  of  the  Constitution 
itself,  and  of  the  United  States  as  a  body-politic.  These  theo- 
ries I  shall  state  in  a  manner  as  brief  and  precise  as  possible. 


22  THEORY   OF   NATIONALITY. 

It  is  not  claimed  that  all  legislators,  judges,  or  statesmen,  who 
have  been  ranged  on  the  one  side  or  on  the  other,  have  ex- 
pressed themselves  in  the  same  unqualified  terms.  While 
some  have  followed  out  their  processes  of  reasoning  to  the  in- 
evitable results,  others  have  stopped  short  of  the  logical  con- 
clusions from  their  premises.  Others  still,  and  among  them 
some  of  the  most  eminent,  have  seemed  to  hesitate  between 
two  ;  while  advocating  measures,  or  rendering  decisions,  which 
appear  to  result  only  from  the  adoption  of  one  of  these  theo- 
ries, they  have  used  language  appropriate  entirely  to  an- 
other. 

§  28.  I.  The  first  theory  regards  the  United  States  as  a 
nation,  and  its  Constitution  as  the  organic,  fundamental  law 
of  that  nation.  This  nation,  or  in  other  words  the  collective 
People  of  the  United  States  as  a  political  unit,  existed  prior  to 
the  adoption  of  the  Constitution,  and  was  not  therefore  called 
into  being  as  a  consequence  of  that  instrument.  The  Con- 
stitution was  not  the  work  of  the  separate  states,  regarding 
those  states  simply  as  organized  governments  ;  nor  of  the  peo- 
ples of  those  states,  regarding  those  peoples  as  separate  and 
independent  sovereign  aggregates  or  communities  ;  but  it  was 
the  work  of  the  People  of  the  United  States  as  a  whole,  as  a 
political  unit,  —  not  voting  together,  it  is  true,  in  the  process 
of  adoption,  as  a  consolidated  mass  of  electors,  but,  for  reasons 
of  policy  and  convenience,  acting  in  their  respective  common- 
wealths. As  a  necessary  consequence,  the  powers  held  by  the 
general  government  were  not  delegated  to  it  by  the  several 
states,  regarding  those  states  simply  as  organized  govern- 
ments ;  nor  by  the  peoples  of  the  several  states,  regarding 
those  peoples  as  separate  and  independent  sovereign  aggre- 
gates or  communities  ;  but  were  delegated  to  it  by  the  People 
of  the  United  States  as  a  whole,  abstracted  from  their  local 
relations  to  the  various  commonwealths  of  which  they  were 
also  members  ;  although,  in  the  very  process  of  delegation, 
this  one  people  did  not  vote  together  as  a  consolidated  mass 
jf  electors,  but,  for  certain  reasons  of  policy  and  convenience, 
acted  mi  their  respective  states.  The  powers  not  thus  granted 
by  the  people  of  the  United  States  to  its  general  government 


THEORIES  PROPOSED   AND   ADVOCATED.  23 

were  not  reserved  by  the  several  states  to  themselves ;  for,  as 
these  states  as  such  did  not  grant  any  powers,  they  could  not 
reserve  any.  But  they  were  reserved  by  the  People  of  the 
United  States  to  themselves,  or  to  the  several  states.  Thus 
the  People  of  the  United  States,  as  a  nation,  is  the  ultimate 
source  of  all  power,  both  that  conferred  upon  the  general  gov- 
ernment, that  conferred  upon  each  state  as  a  separate  political 
society,  and  that  retained  by  themselves. 

§  29.  This,  in  substance,  is  the  view  of  the  Constitution 
advocated  by  Hamilton,  by  Jay,  by  Marshall,  by  Story,  by 
Webster,  and  upheld  by  the  judgments  of  the  Supreme  Court 
during  its  earliest  years,  and  while  it  continued  under  the 
leadership  of  its  most  illustrious  head,  Chief  Justice  Marshall, 
I  would  not  be  understood  as  claiming  that  all  these  great 
men  have  maintained  the  whole  of  the  foregoing  propositions 
in  an  unqualified  manner  ;  and  particularly  it  is  conceded  that 
the  last  of  the  series  —  that  which  relates  to  the  reservation 
of  powers  to  the  states  by  the  People  of  the  United  States, 
and  not  by  the  states  themselves  —  has  rather  been  implied, 
than  clearly  and  dogmatically  stated,  by  many  of  the  adher- 
ents of  this  school.  Even  Marshall  and  Webster,  the  great 
champions  of  the  inherent  nationality  of  the  People  of  the 
United  States,  have  sometimes  used  language  more  appropri- 
ate to  advocates  of  the  theory  to  be  thirdly  stated.  But  I 
give  the  foregoing  abstract,  without  hesitation,  as  embodying 
necessary  and  legitimate  conclusions  from  the  whole  course  of 
their  reasoning ;  while,  by  most  of  the  earlier  expounders,  all 
these  results  were  reached  without  hesitation,  and  were  set 
forth  in  language  pointed  and  cogent,  and  in  a  manner  unre- 
served. In  the  most  recent  times,  this  theory  has  been  devel- 
oped with  great  precision  and  fulness  by  writers  and  juridical 
students  of  eminent  ability  and  learning.  Among  these  may 
be  mentioned  John  Codman  Hurcl,  in  his  "  Essay  on  the  Law 
of  Freedom  and  Bondage  in  the  United  States,"  —  a  treatise 
which,  more  than  any  other  American  work,  has  received  the 
commendation  of  European  jurists ;  O.  A.  Brownson,  in  his 
"  American  Republic  "  ;  and  George  P.  Marsh,  in  a  series  of 
letters  communicated  to  the  "  Nation." 


24         THEORY  OF  STATE  SOVEREIGNTY. 

§  30.  II.  The  second  theory  denies  that  the  United  States 
is  now,  or  ever  was,  in  any  true  sense  of  the  term,  a  nation. 
It  assumes  that,  by  the  revolt  of  the  colonies,  there  resulted 
thirteen  independent  and  sovereign  states  or  nations ;  that 
these  thirteen  states  retained  their  separate  sovereignty  during 
the  confederation  ;  and  that  they  did  not  resign  this  high  at- 
tribute under  the  present  Constitution.  It  does  not  regard 
that  Constitution  as  an  organic  and  fundamental  Law  for  a  sin- 
gle body-politic,  but  as  a  compact,  as  an  instrument  in  the  na- 
ture of  a  league,  treaty,  or  articles  of  association  between  the 
separate,  independent,  sovereign  states.  It  represents  these 
several  sovereign  states  as  granting  or  delegating  a  portion  of 
the  supreme  powers  which  they  possessed  to  the  government 
of  the  United  States,  which  they  had  thus  constituted  as  a 
limited  agent,  for  all  and  for  each  of  them,  to  fulfil  certain 
well-defined  duties,  and  assume  certain  well-understood  func- 
tions, which  this  agent  could  advantageously  fulfil  and  assume. 
As  a  consequence,  this  agent  —  the  general  government  — 
possesses  no  powers  but  those  given  in  express  terms,  or  by 
implication  absolutely  necessary.  Nor  has  it  the  capacity  by 
itself,  or  by  any  of  its  departments,  —  legislative,  executive,  or 
judicial,  —  to  decide,  with  authority  and  as  a  finality,  of  the 
extent  of  those  delegated  powers  ;  but  the  sole  capacity  to 
determine  this  most  momentous  question  rests  with  each  par- 
ticular state  for  itself.  In  the  practical  operation  of  this  ca- 
x  acity  of  determination,  no  state  is  in  the  least  bound  by  act 
of  Congress,  order  of  President,  or  judgment  of  Supreme 
Court,  nor  even  by  the  decisions  of  its  sister  commonwealths, 
but  may  judge  finally  and  conclusively  for  itself.  As  a  further 
consequence  of  this  inherent  capacity  of  determination,  any 
state,  after  it  has  authoritatively  decided  that  the  general  gov- 
ernment has  transcended  its  proper  limits,  has  assumed  and 
exercised  functions  not  belonging  to  it,  may  treat  the  compact 
as  broken,  the  trust  as  forfeited,  the  agency  as  ended ;  and 
may  retire  from  the  confederacy,  thus  resuming  all  the  powers 
which  it  had  before  delegated  to  the  United  States.  Lastly, 
as  the  several  independent,  sovereign  states  were  the  princi- 
pals which  iitrusted  a  portion  of  their  attributes  to  the  general 


THEORIES  PROPOSED   AND   ADVOCATED.  25 

government,  they  reserved  to  themselves  the  residuum  not 
thus  expressly  parted  with  ;  and  are  therefore,  in  theory  and 
in  fact,  the  source  of  all  political  functions  both  of  themselves 
and  of  the  United  States.  We  are,  then,  not  one  nation,  one 
people,  but  an  assemblage  of  nations,  united  for  some  specific 
purposes  by  a  friendly  league  into  a  loose  federation.  No  citi- 
zen, therefore,  owes  allegiance  to  the  United  States,  as  Mr. 
Mason,  of  Virginia,  observed  in  the  Senate  ;  but  each  person 
owes  allegiance  only  to  the  State  of  which  he  is  a  member. 

§  31.  This  theory  found  friends  and  advocates  at  the  very 
earliest  period  of  our  existence  as  an  Union,  and  has  continued 
to  receive  the  support  of  a  large  number  of  public  men  down 
to  the  present  time.  Mr.  Jefferson  gave  it  the  aid  of  his  pow- 
erful influence  in  his  private  correspondence  and  in  many  of 
his  public  acts,  although,  while  at  the  head  of  the  nation  as 
President,  he  practically  abandoned  it.  It  received  a  new 
impetus  from  the  vigorous,  keen,  impracticable  intellect  of 
Mr.  Calhoun,  in  whose  writings  it  was  pushed  to  its  logical 
consequences,  and  whose  disciples  have  most  zealously  propa- 
gated their  faith  until  it  became  an  acknowledged  article  in 
the  political  creed  of  most  Southern  statesmen,  and  did  not 
want  believers  in  all  other  sections  of  the  country.  It  has, 
however,  never  received  the  assent  of  Congress,  or  of  the  Ex- 
ecutive, or  of  the  Judiciary  of  the  United  States,  although 
many  representatives  and  senators,  and  a  few  judges,  have 
attempted  to  commit  their  respective  departments  to  its  cause. 
Baffled  in  the  legislature  and  the  courts,  it  finally  sought  the 
field ;  and,  as  it  appealed  to  the  sword,  may  not  American 
citizens  in  all  portions  of  our  common  country  unite  in  the 
devout  hope  that  it  has  perished  by  the  sword  ? 

§  32.  III.  A  third  system  of  construction  occupies  a  mid- 
dle ground  between  these  two  extremes,  and,  while  avoiding 
the  pernicious  and  destructive  consequences  of  the  latter,  does 
not  adopt  all  of  the  enlarged  and  national  views  of  the  former. 
This  theory  regards  the  states  as  originally  independent,  sov- 
ereign commonwealths,  but  as  having  surrendered  to  the 
United  States  a  portion  of  their  sovereignty,  to  be  held,  not 
At  the  will  and  pleasure  of  the  single  states,  but  absolutely 


26  THEORY  OF  STATE  SOVEREIGNTY. 

and  irrevocably.  While  the  states,  therefore,  and  not  the 
people  of  the  nation  as  a  political  unit,  are  the  source  of  all 
power  given  in  the  Constitution,  that  instrument  was  not  de- 
signed  as  a  mere  compact  or  league  between  independent  sov- 
ereignties, but  as  a  firm  and  lasting  organic  Law  for  the  newly 
created  political  body,  and  is  to  be  expounded,  construed,  and 
interpreted  by  the  governmental  authorities  therein  established. 
All  powers,  however,  not  expressly  granted  by  the  states  are 
reserved  and  held  by  themselves  ;  and  to  that  extent  they  re- 
tain their  ancient  sovereignty. 

§  83.  It  may  be  asked  how  this  last  theory  practically  dif- 
fers from  the  first.  I  answer,  in  some  respects  not  at  all ;  in 
most  respects  widely  and  radically.  According  to  both,  the 
United  States  is  a  nation,  —  by  the  former,  to  all  intents,  and 
with  all  powers  within  the  scope  of  the  functions  committed  to 
the  government  or  reserved  to  themselves  by  the  People  ;  by 
the  latter,  to  a  limited  intent,  with  only  those  special  powers 
conferred  upon  the  government  by  the  states.  Following  the 
former,  wTe  naturally  adopt  an  enlarged  and  liberal  mode  of 
interpretation  ;  following  the  latter,  we  are  compelled  to  re- 
strain and  narrow  the  development  of  national  life.  The  for- 
mer looks  to  the  United  States  as  the  country,  the  home,  the 
centre  of  hopes,  ambition,  patriotism,  and  devotion  ;  the  hitter 
rather  regards  the  individual  state  as  possessing  the  first  place 
in  our  affections,  and  ourselves  as  children  of  the  particular 
commonwealth  rather  than  of  the  mighty  Union  one  and  in- 
divisible. On  the  other  hand,  both  deny  the  right  of  a  state 
to  exalt  its  own  judgment  as  the  sole  criterion  by  which  the 
duties  of  its  members  are  to  be  measured  ;  both  pronounce 
the  assumed  privilege  of  seceding  from  the  Union  as  a  politi- 
cal heresy  of  the  deepest  dye  ;  both  regard  the  Constitution, 
and  the  laws  made  in  pursuance  thereof,  as  paramount  over 
all  local  and  state  legislation. 

§  34.  Among  the  leading  supporters  of  the  last  theory  may 
be  named  Madison  and  Jackson.  It  also  lies  at  the  basis  of 
the  judgments  of  the  Supreme  Court  upon  constitutional  ques- 
tions rendered  during  the  presidency  of  Chief  Justice  Taney. 
[t  had  perhaps  been  adopted  by  a  very  large  portion,  if  not 


MEANING   OF   NATION  AND   SOVEREIGNTY.  27 

indeed  by  a  majority,  of  politicians.  The  events  of  the  last 
six  years,  and  especially  those  growing  out  of  the  close  of  the 
war  and  the  readjustment  of  disturbed  relations,  would  seem 
to  have  brought  the  first  theory  into  greater  prominence ;  and 
it  may  probably  become  the  one  accepted  by  the  government 
and  the  people. 

SECTION  II. 

MEANING  OF  THE  TERMS  "NATION"  AND  "POLITICAL  SOVEREIGNTY." 

§  35.  To  put  each  of  the  foregoing  theories  separately  to 
the  test  would  involve  needless  repetition.  A  single  analysis 
will  be  sufficient  to  disclose  the  essential  nature  of  the  Consti- 
tution, and  of  the  body-politic  which  lies  behind  it.  This 
analysis  will  consist  of  two  separate  and  independent  branches, 
namely,  — 

1st.  A  historical  sketch  of  the  political  movements  which 
terminated  in  the  adoption  of  the  Constitution  ;  and, 

2d.  An  examination  of  the  provisions  of  that  instrument 
itself. 

But,  as  a  preliminary  to  this  investigation,  it  is  absolutely 
necessary  to  form  clear  and  accurate  conceptions  of  the  mean 
ing  of  certain  terms,  —  terms  much  used  in  ordinary  discourse, 
but  yet  often  employed  in  a  vague  and  doubtful  manner. 
Very  much  of  the  difficulty  in  all  verbal  disputes  arises  from 
the  want  of  accurate  definitions  ;  and  this  is  true  in  politics 
as  well  as  in  philosophy  and  religion. 

§  36.  Let  us  at  the  outset,  therefore,  attempt  to  obtain  some 
correct  and  fixed  notions  of  the  term  "  Nation,"  *  and  of  its 
indispensably  related  term,  "  Political  Sovereignty."  The 
facts  represented  by  these  words  necessarily  imply  or  presup- 
pose each  other.  There  can  be  no  nation  without  political  sov- 
ereignty, and  no  political  sovereignty  without  a  nation.     I  shall 

1  Writers  on  public  law  use  the  word  M  State  "  in  the  sense  in  which  I 
have  employed  the  word  "  Nation."  But  as  the  word  "  State  "  has  been 
'mdissolubly  connected  with  our  local  commonwealths,  great  confusion 
Would  result  from  the  employment  of  it,  in  this  discussion,  in  its  more 
general  sense. 


28     DISTINCTION  BETWEEN  NATION  AND   GOVERNMENT. 

not  be  able,  therefore,  to  separate  these  ideas,  and  to  present 
each  as  distinct  from  the  other.  As  well  might  one  attempt 
to  give  a  scientific  description  of  light  and  of  color  without 
reference  to  their  mutual  relations  and  combined  existence. 

§  37.  And  first,  the  distinction  must  be  carefully  and  con- 
stantly preserved  between  the  nation,  and  the  government 
which  that  nation  has  actively  created,  or  has  passively  per 
mitted,  as  the  agent  for  the  expression  of  its  supreme  will. 
The  people  themselves,  the  entire  mass  of  persons  who  com- 
pose the  political  society,  are  the  true  nation,  the  final,  perma- 
nent depositary  of  all  power.  The  organized  government, 
whatever  be  its  form  and  character,  is  but  the  creature  and 
servant  of  this  political  unit  which  alone  possesses  dominion  in 
itself.  It  is  true  that  the  people,  the  nation,  may  have  either 
actively  constituted  or  passively  admitted  the  rulers  to  be  the 
sole  channels  and  means  through  which  their  sovereign  power 
shall  be  ordinarily  wielded  and  directed  for  the  national  \ air- 
poses,  and  may  have  bound  themselves  not  to  resume  the 
direct  and  efficient  management  of  that  power  except  in 
certain  well-defined  and  established  methods  ;  nay,  they  may 
have  restricted  the  government  itself  in  the  exercise  of  its 
functions,  so  that  beyond  certain  appointed  limits  it  cannot 
go,  and  thus  may  have  denied  to  this  government  the  rightful 
use  of  all  the  attributes  of  sovereignty  which  they  themselves 
possess,  so  that  for  the  time  being  these  attributes  cannot  be 
brought  into  play  by  either  ;  but  it  is  no  less  true  that  these 
attributes  still  potentially  exist  in  the  nation,  ready  to  be 
called  forth  whenever  the  people  shall  see  fit  to  follow  the 
defined  and  established  methods,  and  to  put  their  inherent, 
paramount  force  in  motion. 

§  38.  This  great  principle  of  human  rights  and  of  political 
science,  which  was  distinctly  announced  to  the  world  and  first 
practically  acted  upon  by  our  own  forefathers,  and  which  is 
theoretically  admitted  by  most  writers  oni  Public  Law,  has 
been  virtually  overlooked  or  forgotten  by  many  supporters  of 
the  "  State  Rights  "  theory,  in  the  protracted  discussions  that 
have  arisen  upon  the  Constitution.  The  nation  and  the  states 
aave  been  continually  confounded  with  the  mere  ruling  appa 


MEANING    OF  NATION  AND   SOVEREIGNTY.  29 

ratus  or  governments  of  these  societies.  All  powers  have 
been  denied  to  the  nation  except  those  conferred  upon  its 
limited  government,  and  as  a  consequence  the  very  existence 
of  a  nation  at  all  has  been  also  denied. 

The  intentional  ignoring,  or  tacit  rejection  of  the  same 
doctrine,  is  the  fallacy  which  runs  through  the  whole  of  Mr. 
Austin's  elaborate  lecture  upon  the  nature  of  the  independent 
political  society  and  of  political  sovereignty  found  in  the  first 
volume  of  his  "  Province  of  Jurisprudence,"  and  which  thus 
destroys  much  of  the  usefulness  of  that  treatise. 

§  39.  It  is  certainly  unnecessary  for  Americans  to  argue  in 
favor  of  the  correctness  of  this  principle.  Our  whole  politi- 
cal structure,  our  whole  civilization,  is  based  upon  it.  So  true 
is  it  to  nature  and  humanity,  that  not  only  have  European 
publicists  adopted  it,  but  even  the  European  governments  do 
not  now  reject  it ;  and  some  of  the  most  arbitrary  claim  to 
wield  their  power  by  virtue  of  an  authority  derived  from  its 
practical  recognition.  The  idea  that  the  rulers,  whether  one 
or  many,  compose  the  state,  is  a  thing  of  the  past,  a  notion 
which  has  been  swept  away  in  the  resistless  march  of  social 
development. 

§  40.  The  foregoing  postulate  being  accepted,  a  nation,  in 
its  strict  sense,  may  be  defined  to  be  an  independent,  separate, 
political  society,  with  its  own  organization  and  government, 
possessing  in  itself  inherent  and  absolute  powers  of  legislation. 
It  may  not,  from  some  peculiar  features  of  its  voluntarily 
created  or  permitted  form  of  civil  order,  have  enabled  its 
rulers  to  call  into  efficient  action  all  of  these  inherent  and 
absolute  powers  of  legislation,  and  it  may  have  restrained 
itself,  by  solemn  and  fundamental  enactments,  from  exercis- 
ing these  complete  powers  except  by  a  course,  and  in  a  man- 
ner, distinctly  defined  and  established  ;  yet  so  far  forth  as  it 
possesses  these  attributes  without  limit,  and  so  far  forth  as 
it  has  clothed  its  constituted  rulers  with  functions  which 
involve  these  attributes  under  limits,  it  knows  no  superior  to 
'tself,  it  is  not  subordinate  to  any  other  political  society  or 
government. 

§  41.  Such  a  political  society  is  a  nation ;  this  nation  pos 


BO  NATIONALITY   OF   THE   UNITED    STATES. 

sesses  political  sovereignty.  It  may  have  any  organization, 
from  the  purest  democracy,  to  the  most  absolute  monarchy  ; 
but  considered  in  its  relations  to  the  rest  of  mankind  and  to 
its  own  individual  members,  it  must  exist,  to  the  extent  at 
least  of  enacting  laws  for  itself,  as  an  integral,  independent, 
sovereign  society  among  the  other  similar  nations  of  the  earth. 
Its  government,  or  in  other  words,  the  permanent  agents 
which  it  has  established  to  make  efficient  its  organic  will,  must 
be  so  far  independent,  that  no  other  power  may  authorita- 
tively control  its  legislation,  no  other  state  may  interfere,  and, 
according  to  any  received  and  admitted  constitution  of  things, 
prescribe  what  the  law  shall  be. 

§  42.  From  this  description  of  the  "  Nation  "  and  of  "  Polit- 
ical Sovereignty,"  it  is  evident  that  the  latter  term  especially 
is  often  used  in  a  sense  far  from  correct,  falling  for  short  of 
the  fulness  of  meaning  which  legitimately  belongs  to  it.  If 
we  may  properly  apply  the  word  sovereign  to  political  socie- 
ties which  are  really  subordinate,  because  within  their  subor- 
dinate sphere  they  possess  a  large  mass  of  political  powers,  and 
can  lawfully  act  throughout  a  wride  range  over  their  immedi- 
ate subject  inferiors,  then  we  may  with  equal  propriety  describe 
as  sovereign  any  society  or  person  that  occupies  a  position  of 
superiority  simply  in  relation  to  others  who  are  dependent.  In 
truth,  the  term  sovereign,  used  as  a  word  of  political  import, 
is  the  expression  of  an  absolute  idea ;  it  does  not  admit  any 
notion  of  grades,  of  inferiority,  of  dependence,  or  of  division. 

Of  course,  I  purposely  put  out  of  view  the  supremacy  of 
God  over  nations  as  well  as  over  individual  men,  for  I  am 
speaking  only  of  the  character  of  civil  societies  in  their  rela- 
tions to  each  other  and  to  their  own  members. 


SECTION  III. 

THE    PRINCIPAL    PROPOSITION   IN    REGARD     TO    THE    NATURE    OF     THE 
CONSTITUTION   AND    THE    NATIONALITY    OF    THE    UNITED    STATES. 

§  42  a.  The  meaning  of  the  terms  Nation  and  Political  Sov- 
ereignty having  been  thus  explained,  I  purpose  to  show  that 


NATIONALITY   OF   THE   UNITED   STATES.  31 

the  United  States  fulfils  all  the  requirements  which  have  been 
mentioned  as  necessary  to  the  existence  of  a  nation  ;  that  the 
people  thereof  is  an  independent,  separate  political  society 
with  its  own  organization  and  government,  possessing  in 
itself  inherent  and  absolute  powers  of  legislation  ;  that  by  its 
Constitution  it  has  created  a  government  as  its  agent  for  mak- 
ing  its  will  efficient,  but  has  therein  expressly  prevented  that 
agent  from  calling  into  action  all  of  its  inherent  and  absolute 
powers  ;  that  by  the  same  Constitution  it  has  also  restrained 
itself  from  exercising  those  powers  in  their  full  measure, 
except  by  methods  carefully  defined  in  the  same  instrument ; 
that  by  pursuing  these  methods  there  is  no  limit  to  the  oper- 
ation of  the  national  force  ;  that  its  attributes  are  self-exist- 
ent and  not  derived  ;  that  it  knows  no  superior ;  that  no 
other  civil  society  may  authoritatively  control  its  legislation, 
or  judge  of  the  extent  to  which  that  legislation  may  be 
carried. 

§  43„  On  the  other  hand,  in  respect  to  all  these  particulars 
which  truly  constitute  a  nation,  each  state  must  be  described 
in  terms  the  exact  opposites  of  those  employed  in  reference  to 
the  United  States.  Each  state  is  not  an  independent,  separate 
political  society  ;  it  does  not  possess  in  itself  inherent  and 
absolute  powers  of  legislation  ;  the  functions  of  its  rulers  are 
limited  not  only  by  its  own  local  constitution,  but  by  that  of 
the  Union,  and  cannot  be  indefinitely  enlarged  by  any  amend- 
ments of  its  own  organic  law,  for  the  organic  law  of  the  nation 
binds  it  by  an  irresistible  sanction ;  another  political  society 
not  only  may  but  must  control  its  legislation  and  judge  of 
the  extent  to  which  that  legislation  may  be  carried.  Instead 
of  enjoying  attributes  of  sovereignty,  each  state,  as  a  separ- 
ate political  society,  is  in  a  position  of  permanent  subordina- 
tion. 

§  44.  Of  course  I  am  now  speaking  of  the  United  States 
and  of  the  several  commonwealths  under  our  present  civil 
wder,  as  that  is  adjusted  by  and  through  the  existing  organic 
law.  I  make  no  reference  to  the  event  of  a  revolution,  and 
the  results  which  such  a  catastrophe  might  produce  ;  for  revo- 
utions  are  accomplished  not  according  to  law  and  the  estab- 


32  NATIONALITY   OF   THE   UNITED    STATES. 

Hslied  order  of  things,  but  against  law,  and  by  the  destruction 
of  the  constituted  authority. 

The  propositions  here  stated  will  be  illustrated  in  the  two 
succeeding  chapters  by  a  historical  sketch,  and  by  an  exami- 
nation of  the  Constitution  itself. 


CHAPTER  II. 

HISTORICAL  SKETCH  OF  THE  POLITICAL  MOVEMENTS  WHICH  TER- 
MINATED IN  THE  ADOPTION  OF  THE  CONSTITUTION. 

SECTION   I. 

THE   PERIOD   PRIOR    TO    THE   CONFEDERATION. 

§  45.  The  nature  of  the  civil  polity  which  existed  during 
the  earlier  periods  of  the  revolution  and  subsequently  under 
the  Confederation,  is  an  element  of  the  utmost  importance  in 
determining  the  character  of  the  present  Union.  It  has  long 
been  too  much  neglected  by  statesmen  and  political  writers  ; 
but  its  controlling  effect  was  recognized  by  those  men  who 
had  passed  through  the  struggle  of  the  war  and  the  disastrous 
experience  of  the  Confederation,  and  were  called  upon  by  their 
official  positions  to  fix  the  limits  of  the  new-made  government. 
In  very  recent  times,  during  the  search  for  first  principles  and 
solid  foundations  quickened  by  the  late  war,  the  attention  of 
American  publicists  has  been  again  more  strongly  drawn  to 
this  vital  subject,  and  it  has  been  examined  with  more  care, 
and  illustrated  with  more  fulness,  than  ever  before. 

§  46.  Those  who  have  adopted  either  the  second  or  third 
of  the  theories  set  forth  in  the  preceding  chapter,  have  ex- 
pressly assumed  as  their  fundamental  position,  and  many  who 
should  be  ranged  among  the  supporters  of  the  first  have  at 
times  seemed  tacitly  to  admit,  that  whatever  of  a  national 
character  we  possess  dates  from  the  first  establishment  of  the 
present  Constitution ;  that  by  or  through  this  instrument  the 
people  of  the  states  were  for  the  first  time  drawn  together  into 
an  union  which  might  properly  be  termed  a  nation ;  that  prior 
thereto  the  several  states  were  confessedly  sovereign,  inde- 
3 


34  HISTORICAL    SKETCH. 

pendent  commonwealths.  The  advocates  of  the  second,  ol 
"State  Rights"  theory  must  of  necessity  maintain  this  posi- 
tion ;  but  from  those  who  hold  to  the  essential,  perpetual,  and 
supreme  nationality  of  the  Union,  this  concession  is  not  the 
mere  surrender  of  a  verbal  point;  it  is  the  abandonment  of  a' 
great  principle,  and  is  not  only  impolitic,  but  unnecessary, 
being  entirely  contrary  to  the  truth.  We  have  now  to  deal 
with  plain  historical  facts,  not  with  theories,  nor  with  disputed 
questions  of  intention.  Whatever  these  facts  may  be,  we 
cannot  change  them  by  argument,  nor  escape  from  their  legit- 
imate consequences.  I  repeat,  the  condition  and  character 
of  the  political  society  prior  to,  and  at  the  time  of,  the  adop- 
tion of  the  Constitution,  is  a  fact,  to  be  ascertained  in  the 
same  manner  as  any  other  matter  within  the  province  of 
history. 

§  47.  Prior  to  the  revolt  which  terminated  in  the  war  of 
the  Revolution,  the  colonies  were  not  a  single  nation,  nor 
were  they  thirteen  separate  nations.  They  possessed,  singly 
or  in  combination,  none  of  the  powers  and  attributes  of  nation- 
ality. Each  was  independent  of  the  others  so  far  that  the 
collective  inhabitants  and  local  governments  0f  each  had  no 
authority  over  the  inhabitants  nor  within  the  territory  of  the 
others.  But  each  was  a  dependency  and  an  integral  part  of 
the  British  empire.  As  a  result  flowing  from  this  common 
dependence,  the  inhabitants  of  each  possessed  certain  rights 
and  privileges  within  the  territories  of  all  the  rest ;  the  people 
of  each  owed  common  allegiance  to  the  crown,  and  were  under 
a  common  subjection  to  the  imperial  government  of  the  King 
and  Parliament.  It  is  true  that  from  their  proximity,  their 
one  language  and  religion,  and  the  general  identity  of  their 
interests,  a  feeling  of  unity  and  nationality  had  to  some  extent 
become  spread  through  the  colonies ;  but  this  was  as  yet  a 
mere  sentiment,  and  would  continue  such  until,  as  it  deepened 
in  intensity,  it  should  result  in  united  acts  of  the  whole  people 
which  should  proclaim  that  people  one  nation. 

§  48.  Such  acts  were  done.  Difficulties  arose  between  cer- 
tain colonies  and  the  imperial  government ;  and  these  proving 
too  serious  for  peaceful  adjustment,  resort  was  had  to  violence. 


THE   PERIOD   PRIOR   TO   THE   CONFEDERATION  85 

In  their  first  appeal  to  arms,  in  their  first  movement  toward 
separation  from  the  British  empire,  the  people  of  the  colonies 
acted  as  a  unit;  and  from  this  epoch  dates  our  national  exist- 
ence, dates  the  birth  of  a  political  society  now  known  as  the 
United  States  of  America.  The  revolt  was  not  the  work  of 
the  colonies  acting  separately  and  independently,  in  any 
assumed  sovereign  capacity,  but  of  the  people  of  all  these 
local  communities  acting  together  through  their  representa- 
tives in  the  Continental  Congress,  which  assembly,  though 
revolutionary,  provisional,  tentative,  and  loosely  organized, 
was  essentially  national. 

§  49.  On  the  5th  of  September  1774,  delegates  to  the  first 
Congress  assembled  at  Philadelphia.  They  were  appointed 
from  the  different  colonies ;  in  some  by  the  popular  branch  of 
the  legislature,  in  others  by  a  convention  directly  chosen  by 
the  people.1  With  a  correct  understanding  of  the  real  condi' 
tion  of  affairs,  and  of  their  own  character  as  representatives, 
these  men  styled  themselves  in  their  formal  acts  "  the  Dele- 
gates appointed  by  the  Good  People  of  these  Colonies." 

The  government  thus  formed  was,  in  truth,  revolutionary  ; 
it  was  not  intended  to  be  permanent ;  but  it  exercised  in  fact 
and  of  right  a  sovereign  authority,  not  as  the  delegated  agents 
of  the  local  governments  of  the  separate  colonies,  but  in  virtue 
of  original  power  granted  by  the  people.  Their  acts  were  all 
of  a  national  character.  They  forbade  the  importation  and 
exportation  of  articles  of  merchandise  from  and  to  Great 
Britain  and  certain  of  its  dependencies  ;  they  passed  a  Bill  of 
Rights ;  they  stated  their  common  grievances,  and  adopted  an 
address  to  the  king  and  to  the  British  people. 

§  50.  On  the  10th  of  May,  1775,  a  second  congress  of 
delegates  was  held.  These  were  chosen  in  some  of  the  colo- 
nies by  the  popular  branches  of  the  local  legislatures,  but  in 
most  by  conventions  directly  elected  by  the  people.2  Their 
measures  were  still  more  national.  They  assumed  to  regulate 
commerce,  to  provide  a  supply  of  funds,  to  raise  an  army,  to 
construct  a  navy,  to  establish  a  Post-Office  Department,  and 
to  do  many  other  acts,  all  looking  toward  a  complete  separa 
1  See  1  Story  on  the  Constitution,  §  200.  2  Ibid.  §  203. 


36  HISTORICAL   SKETCH. 

tion  from  the  British  empire.1  Finally,  they  issued  the  Dec- 
laration of  Independence,  and  thus  at  one  blow  cut  off  all 
connection  with  the  mother  country,  and  consummated  the 
process  of  national  birth  which  had  been  begun  two  years 
before. 

§  51.  "What  is  the  result  to  be  deduced  from  these  events  ? 
Prior  to  the  Declaration  of  Independence  the  colonies,  sepa- 
rately or  unitedly,  did  not  assume  to  be,  nor  were  they,  inde- 
pendent, sovereign  states.  In  theory,  they  still  spoke  of  them- 
selves as  dependencies  of  the  British  crown,  seeking  redress 
by  foi-ce,  but  ready  to  return  to  their  obedience  whenever  that 
redress  should  be  granted.  Practically  they  were  in  a  condi- 
tion of  revolution  ;  the  words  of  duty  in  their  public  acts  were 
mere  words  of  policy,  their  deeds  had  another  meaning.  But 
in  their  progress  toward  independence  they  acted  in  concert 
from  the  beginning:,  and  this  concert  was  not  one  of  mere 
league  or  compact,  but  of  organic  unity.  The  boundaries 
which  separated  one  colony  from  another  were  unaltered  ;  the 
local  legislatures  were  preserved  ;  the  congress  of  delegates 
assumed  but  limited  powers  ;  but  so  far  as  they  asserted  inde- 
pendence it  was  the  assertion  of  the  nation  and  not  of  thirteen 
sovereign  nations.  Nor  did  the  delegates  derive  their  author- 
ity  in  fact  from  the  colonial  legislatures,  but  from  the  one  peo- 
ple acting  behind  and  superior  to  these  legislatures,  acting  as 
a  political  society,  and  exercising  the  attribute  of  sovereignty 
which  belongs  to  such  a  body  politic.  Beyond  all  question  the 
idea  of  nationality  was  not  distinctly  presented  to  their  minds  ; 
they  did  not  evolve  a  completed  theory  of  the  nature  of  their 
civil  polity,  and  proceed  to  carry  out  that  theory.  They  were 
guided  by  circumstances,  and  as  events  led  tliem  to  acts  of 
nationality  they  followed  unhesitatingly. 

§52.  Again,  the  Declaration  of  Independence  was  not  the 
work  of  thirteen  separate  colonies,  each  acting  in  an  assumed 
sovereign  capacity,  but  of  the  United  Colonies  acting  in  a 
national  capacity  through  their  delegates  in  congress  assem- 
bled. This  congress  did  not  propose  the  declaration  to  the 
states  and  recommend  its  adoption  by  their  local  legislatures 
1  See  1  Story  on  the  Constitution,  §  203. 


THE   PERIOD   PRIOR   TO   THE   CONFEDERATION.         37 

nor  did  it  need  such  endorsement  to  give  it  validity ;  state 
ratification  when  made  was  a  work  of  supererogation.  The 
declaration  was  finally  and  forever  established  by  the  whole 
independent  political  society  through  the  means  which  they 
had  appointed.  The  language  of  the  instrument  itself  indi- 
cates its  nature  and  its  origin.  Nothing  is  said  of  the  inde- 
pendence of  the  several  states,  but  the  operative  clauses  in- 
dissolubly  combine  the  idea  of  organic  unity  and  nationality 
with  that  of  independence.  "  We,  therefore,  the  representa- 
tives of  the  United  States  of  America,  in  general  congress 
assembled,  appealing  to  the  Supreme  Judge  of  the  world  for 
the  rectitude  of  our  intentions,  do  in  the  name  and  by  the 
authority  of  the  good  people  of  these  colonies,  solemnly  pub- 
lish and  declare,  that  these  United  Colonies  are,  and  of  riodit 
ought  to  be,  free  and  independent  states  ;  that  they  are 
absolved  from  all  allegiance  to  the  British  crown,  and  that 
all  political  connection  between  them  and  the  state  of  Great 
Britain  is,  and  ought  to  be,  totally  dissolved ;  and  that,  as  free 
and  independent  states,  they  have  full  power  to  levy  war, 
conclude  peace,  contract  alliances,  establish  commerce,  and  tc 
do  all  other  acts  and  things  which  independent  states  may  of 
right  do."  It  is  evident  that  in  this  clause,  the  words  "  free 
and  independent  states,"  "  united  colonies,"  "  good  people  of 
these  colonies,"  are  used  in  a  collective  sense,  to  describe  the 
one  political  society  which  was  declared  to  be  independent 
and  to  possess  sovereign  powers. 

§  53.  No  single  colony,  therefore,  by  this  organic  act  revolt- 
ed and  claimed  separate  independence.  It  is  true  that  New 
Hampshire,  New  Jersey,  and  South  Carolina,  had,  prior  to 
July  4th,  1776,  adopted  new  constitutions  for  themselves ; 
but  these  were  all  made  in  pursuance  of  a  resolution  of  Con- 
gress of  the  3d  and  4th  November,  1775,  recommending  the 
states  to  form  such  government  "  as  would  best  promote  the 
happiness  of  the  people  ....  during  the  continuance 
of  the  dispute  with  Great  Britain  :  "  1  and  they  were  all 
3xpressly  declared  to  be  temporary,  and  to  exist  only  until  a 

*  See  Jameson,  Const.  Conv.  §  127.  See  also  §  128,  for  a  second  reso- 
ution  of  May  10,  1776. 


38  HISTORICAL    SKETCH. 

reconciliation  should  be  effected  with  the  mother  country.1 
These  constitutions  were,  therefore,  political  steps  toward 
independence,  but  not  absolute  assertions  of  that  condition. 
Virginia  bad  acted  more  decisively.  On  the  29th  of  June, 
1776,  she  had  declared  "the  g  •-/eminent  of  this  country  as 
formerly  exercised  under  the  crown  of  Great  Britain  totally 
dissolved."2  But  this  was  a  declaration,  not  that  Virginia, 
but  that  the  whole  united  colonies  were  independent ;  it 
only  shows  that  the  statesmen  of  Virginia  in  those  early  days 
had  a  true  understanding  of  their  relations  to  the  other  colo- 
nies and  to  the  nation  ;  they  then  recognized  the  existence  of 
one  country,  and  that  country  not  the  State  of  Virginia,  but 
the  United  States  of  America.  Who  then  became  indepen- 
dent by  this  organic  declaration  of  the  people's  will  ?  Not 
Massachusetts,  not  New  York,  not  Virginia,  but  the  nation. 
To  whom  did  that  political  sovereignty  pass  which  had  before 
been  vested  in  the  empire  of  Great  Britain,  acting  through  its 
king  and  parliament  ?  Not  to  Massachusetts,  not  to  New 
York,  not  to  Virginia,  for  these  political  societies  had  not  de- 
clared themselves  independent,  but  to  the  United  States  of 
America. 

§  54.  But  it  may  be  asked,  if  this  proceeding  was  national, 
when  and  how  did  the  colonies  become  one  nation  ?  The 
answer  has  already  been  partially  given.  The  people,  in 
the  first  expression  of  their  organic  will  by  the  appointment 
of  delegates  to  a  general  congress,  took  the  initiative  in  their 
progress  toward  nationality.  They  clothed  these  delegates 
with  undefined  powers  for  the  public  good ;  the  delegates 
finally,  in  the  exercise  of  these  powers,  declared  the  country 
free  and  independent  of  the  British  crown  ;  the  people,  bj' 
their  acquiescence  in  this  declaration,  completed  the  birth  of 
the  nation.  There  never  was,  in  fact,  a  moment's  interval 
when  the  several  states  were  each  independent  and  sovereign. 
While  colonies  they  unitedly  resisted,  revolted,  declared  that 
combined  political  society  independent.  The  blow  which  sev- 
ered the  connection  with  the.  British  empire,  did  not  leave  a 

1  See  Jameson,  Const.  Conv.  §§  131,  133,  139. 

2  1  Story  <r*.  the  Constitution,  §  211. 


THE  PERIOD   PRIOR   TO   THE   CONFEDERATION.         39 

disintegrated  mass  made  up  of  thirteen  communities  now  in 
dependent ;  it  left  an  united  mass,  a  political  unity,  a  nation 
possessing  the  high  attributes  of  sovereignty  which  it  had  just 
exercised.  The  United  States  was  then  a  fact,  and  no  power 
but  that  which  called  it  into  being  —  the  People  —  is  compe- 
tent to  decree  the  national  destruction. 

§  55.  I  have  dwelt  somewhat  at  length  upon  this  point 
because  I  esteem  it  to  be  of  vital  importance  to  a  proper  un 
derstanding  and  construction  of  the  acts  and  proceedings  of 
the  people  of  the  United  States  in  the  adoption  of  the  pres- 
ent Constitution.  It  is  the  key  to  the  whole  position.  Grant 
that  in  the  beginning  the  several  states  were,  in  any  true 
sense,  independent  sovereignties,  and  I  see  no  escape  from 
the  extreme  positions  reached  by  Mr.  Calhoun.  If  at  the 
outset  the  political  society  consisted  only  in  a  weak  agglom- 
eration of  thirteen  separate  nations,  each  of  these  nations  must 
have  possessed  all  the  powers  which  belong  to  any  other 
independent  sovereignty  in  the  world.  Among  these  attri- 
butes, the  one  which  underlies  all  others,  and  is,  in  fact, 
necessarily  implied  in  the  very  conception  of  separate  nation- 
ality, is  that  of  supreme,  continued  self-existence.  This  in- 
herent right  can  only  be  destroyed  by  overwhelming  opposing 
force  ;  it  cannot  be  permanently  parted  with  by  any  constitu- 
tion, treaty,  league,  or  bargain,  which  shall  forever  completely 
resign  or  essentially  limit  their  sovereignty,  and  restrain  the 
people  from  asserting  it.  They  may  at  any  time  throw  off 
the  obligations  of  constitution,  treaty,  or  league ;  however 
solemn  and  formal  may  have  been  the  stipulations  into  which 
they  have  voluntarily  entered,  these  exist  only  during  their 
own  good  will  and   pleasure.1 

1  This  doctrine  that  a  sovereign  state  cannot  bind  itself  by  any  treaty 
or  compact  by  which  its  sovereignty  is  wholly  or  substantially  surrendered 
or  lessened,  is  now  maintained  by  the  leading  writers  on  Public  and  Inter- 
national Law.  In  the  expressive  language  of  one  of  these  writers,  "  For 
moral  beings  as  well  as  for  individuals,  there  can  be  no  obligatory  prom- 
ise, when  this  promise  is  of  suicide."  See,  on  this  subject,  Martens,  Precis 
iu  Droit  des  Gens,  §  52  (Paris,  1864)  ;  Ortolan,  Diplomatie  de  la  Mer,  liv 
I,  ch.  v.  p.  90  (Paris,  1864)  ;  Hautefeuille  Des  Droits  et  des  Devoirs  des 
Nations  Neulres,  t.  i.  pp.  8-10  (Paris,  1858)  ;  HefFter,  Droit  Internationa 


10  HISTORICAL   SKETCH. 

§56.  Now  it  is  claimed  that  these  highest  attributes  of  polit- 
ical sovereignty  belong,  and  from  the  very  beginning  have 
belonged,  to  the  people  of  the  United  States,  one  and  indi- 
visible. If,  on  the  contrary,  they  originally  pertained  to  the 
thirteen  states  in  their  separate  capacities,  they  have  never 
been  permanently  surrendered  or  essentially  limited,  simply 
because  they  cannot  be  thus  forever  parted  with  ;  and  as  a 
consequence  they  may  be  resumed  and  exercised  at  will. 
Thus  have  the  extreme  opponents  of  nationality  reasoned 
with  irresistible  logic  from  the  premises  assumed  by  them 
—  the  original  sovereignty  of  each  state.  Believing  as  I  do 
that  their  conclusions  are  false  in  theory  and  in  fact,  and 
destructive  of  all  that  is  admirable  in  our  national  union  and 
constituted  government,  I  see  no  escape  from  these  result;-, 
if  the  premises  are  granted  upon  which  their  whole  argument 
is  based. 

But  the  premises  should  not,  need  not,  be  granted.  It  is 
demonstrable  as  a  fact  of  history,  as  to  which  there  can  be  no 
mistake,  and  which  cannot  be  changed  to  suit  the  demands  of 
conflicting  theories,  that  the  people  of  the  United  States, 
through  their  own  positive  act  done  in  their  own  name  by 
their  delegates,  sprang  into  self-existence  as  an  organic  polit- 
ical society  possessing  sovereignty,  and  that  the  separate 
states,  as  individual  bodies  politic,  were  never  independent, 
never  clothed  with  the  attributes  of  nationality. 

SECTION  II. 

THE    PERIOD    OF    THE    CONFEDERATION. 

§  57.  In  the  further  development  of  this  branch  of  the 
(Subject,  I  shall  now  examine  the  origin  and  character  of 
the  Confederation  which  preceded  the  existing  government. 

Although  as  a  grand  historical  fact,  the  revolt  and  the 
Declaration  of  Independence  were  the  work  of,  and  had 
resulted    in,   one    nation,    yet  it  must    be  at   once  conceded 

Public,  §  83  (Paris,  1866)  ;  Pinheiro-Ferreira,  Note  to  §  58  of  Marten. 
(ed.  of  1864). 


THE  PERIOD   OF   THE   CONFEDERATION.  41 

that  the  theory  Avas  not  yet  perfected  in  the  minds  of  the 
revolutionary  leaders,  or  of  the  people  themselves.  It  is  not 
possible  for  any  community  to  shake  off,  by  one  voluntary 
act,  the  habits  of  thought,  prejudices,  and  opinions,  which 
have  formed  a  part  of  their  common  life  for  generations. 
Under  the  influence  of  high-wrought  feeling,  or  of  a  clear 
conception  of  duty  or  interest,  a  people  may  temporarily 
throw  aside  their  former  habitual  modes  of  action,  and  for 
a  time  adapt  themselves  to  a  new  state  of  social  existence  ; 
but  as  soon  as  the  paroxysm  is  past,  as  the  flow  of  enthu- 
siasm has  receded,  the  conceptions  of  duty  and  interest  be- 
come less  clear,  and  the  community  gradually  returns  to  its 
old  customs,  thoughts,  and  methods.  Our  revolutionary 
fathers  were  no  exception  to  this  rule.  While  colonies  they 
had  regarded  their  political  societies  as  distinct ;  some  jeal- 
ousies had  continually  existed  among  them  ;  some  difference 
of  interests  had  ever  kept  them  apart.  The  necessities  of 
their  position,  the  absolute  impossibility  of  separate  revolts, 
the  presence  of  a  common  danger,  and  the  sentiments  of  an 
exalted  patriotism,  for  a  while  swept  away  and  buried  all 
these  local  prejudices,  these  attachments  to  colonial  or  state 
independence.  The  interests  of  the  whole  were  for  a  time 
regarded  as  paramount,  and  placed  far  in  advance  of  the 
interests  of  the  several  parts.  This  perfect  unity  lasted  long 
enough  to  produce  that  glorious  offspring,  the  People  of 
the  United  States.  —  that  new-born  Nation,  destined  in  the 
providence  of  God,  I  reverently  believe,  to  be  the  example 
and  teacher  to  all  the  nations  of  the  earth,  an  example  and 
teacher  by  its  errors  and  punishments  as  well  as  by  its  ex- 
cellencies and  prosperity,  until,  being  made  perfect  through 
suffering,  it  shall  wield  an  influence  over  humanity  even 
surpassing  that  exerted  by  the  deathless  empire  of  Rome. 

§  58.  But  soon  after  the  formal  act  which  asserted  the 
national  independence,  state  pride,  interests,  and  influence, 
began  to  be  felt  plainly  and  powerfully  in  our  national 
councils.  The  former  habits  were  too  strong  to  be  forgot- 
en,  and  they  soon  returned  with  even  increased  power.  A 
government  must  be  formed  to  take  the  place  of  the  exist 


12  HISTORICAL  SKETCH. 

ing  one,  which  was  regarded  as  revolutionary  and  temporary 
improvised  to  meet  the  exigencies  of  the  occasion  which 
called  it  into  being.  As  the  revolution  was  no  longer  a 
mere  policy  of  resistance  ready  to  be  abandoned  when  the 
British  crown  and  parliament  should  yield  to  the  demands 
of  the  colonies,  but  was  to  be  prosecuted  until  independence 
should  be  recognized,  a  permanent  organization  must  be  sub- 
stituted in  the  place  of  the  one  which  had  hitherto  served 
to  represent  the  people  and  to  form  the  channel  through 
which  their  national  will  was  expressed.  In  the  construc- 
tion of  this  new  government  the  separate  state  power  tri- 
umphed over  the  national  idea.  Yet  the  latter  was  not 
entirely  abandoned,  nor  was  it,  in  fact,  formally  renounced. 
The  people  still  remained  one.  They  alone  could  decree 
their  own  destruction,  and  such  a  suicidal  act  can  never  be 
established  by  implication  ;  of  all  others  it  needs  positive, 
direct  proof. 

Still  it  is  true  that  in  arranging  the  new  Confederation, 
in  allotting  powers  and  functions  to  its  government,  the  su- 
premacy was  conceded  to  the  states,  while  the  national  au- 
thority was  placed  in  a  position  of  actual  subordination.  The 
states  were  assumed  as  the  sources  of  power  ;  they  were  rep- 
resented as  severally  existing  and  as  delegating  a  small  por- 
tion of  their  attributes  to  the  central  agent,  while  they  re- 
served a  much  larger  share  to  themselves.  But  even  in  the 
midst  of  this  partial  abandonment  of  the  idea  with  which  the 
revolution  Avas  commenced,  the  general  body  politic  was  not 
stripped  of  all  its  insignia  of  nationality.  It  was  still  left  as 
the  only  political  society  which  could  hold  intercourse  with 
other  sovereignties,  which  was  admitted  into  the  family  of 
nations. 

§  59.  On  the  15th  of  November,  1777,  Articles  of  Confed- 
eration, which  from  time  to  time  had  been  discussed  in  the 
Continental  Congress,  were  finally  passed  by  that  body  and 
recommended  to  the  several  states  for  adoption.  The  states 
slowly  followed  the  advice  of  Congress.  All  had  ratified  the 
instrument  in  1778,  except  Delaware  and  Maryland.  Dela- 
ware yielded  in  1779,  and  Maryland  in  1781. 


THE   PERIOD   OF   THE   CONFEDERATION.  43 

§  (30.  A  recent  writer  describes  the  nature  of  the  Confed- 
eration and  the  influences  which  led  to  it,  in  the  following 
manner i1  "It  is  true,  however,  that  this  principle  of  one 
nationality  thus  embodied  in  our  Declaration  of  Independence, 
was  not  clearly  and  consciously  before  the  mind  of  the  coun- 
try at  the  time  that  declaration  was  made.  The  Union  which 
wTas  thus  constituted  was  generally  understood  to  be  chiefly 
for  mutual  defence,  which  left  the  question  between  one  or 
many  sovereignties  to  be  finally  determined  by  future  con- 
tingencies. Neither  was  it  plain  even  to  the  national  men  of 
that  day,  either  how  much,  or  what  sort  of  union  was  neces- 
sary to  constitute  a  national  government.  Clear  and  adequate 
conceptions  of  what  they  were  dimly  striving  to  realize  could 
not  come  in  a  moment,  could  not  be  other  than  the  growth 
of  years  of  effort.  Also,  the  colonial,  now  the  state,  govern- 
ment were  first  in  the  field,  in  full  organization  and  activity, 
with  already  more  than  a  century  of  growth  and  consolida- 
tion, and  they  were  intensely  jealous  of  each  other. 

§  61.  "  From  these  causes  it  resulted  that  the  state  gov- 
ernments, seduced  by  the  charms  of  separate  independence 
and  nationality,  immediately  assumed  to  exercise  all  those 
sovereign  powers  which  had  been  reclaimed  from  the  crown 
of  Great  Britain  by  an  act  of  the  people  of  all  the  states  in 
the  Union.  And  this  assumption,  although  it  was  not  so 
understood  at  the  time,  was,  in  its  true  character,  an  usurpa- 
tion  Here  we    see  that    state    sovereignty  on 

this  continent  had  its  birth  in  a  palpable  usurpation,  which 
nas  never  been  formally  sanctioned  by  the  people  of  a  single 
state,  much  less  by  the  people  of  all  the  states,  which  would 
have  been  necessary,  after  the  Declaration  of  Independence, 
to  legitimate  it  in  any  one  of  them. 

§  62.  "  Having  in  this  manner  possessed  themselves  of 
sovereign  powers,  the  states  proceeded  to  delegate  a  portion 
of  them  to  a  confederated  government  under  the  celebrated 
Articles  of  Confederation.  And  here  again  we  find  the  logic 
9f  usurpation   ruling  the  whole  procedure.      For  the    states 

1  See  the  Princeton  Review  for  October  1861,  p.  615.  The  article  is  from 
M  pen  of  J.  H.  Mcllvaine,  D.  D.,  Prof,  of  Polit.  Science,  Coll.  of  N.J. 


44  HISTORICAL   SKETCH. 

had  nc  right,  upon  any  theory  of  popular  government,  to  form 
that  Confederation.  Whatever  sovereign  powers  they  now  pos- 
sessed they  claimed  at  least  to  hold  from  the  people,  whose 
acquiescence  in  what,  as  we  have  seen,  was  at  first  an  usurpa- 
tion, did  give  it  an  informal  validity.  No  other  claim  would 
have  been  tolerated  for  a  moment.  But  it  is  evident  that  no 
government  holding  from  the  people,  can  have  any  right  to 
alienate  its  sovereign  powers  in  order  to  form  another  govern- 
ment. The  powers  which  a  government  holds  in  trust  from 
the  people,  it  can  have  no  right  to  resign  into  any  other  hands 
except  those  of  the  people  themselves.  The  states  had  no 
more  right  to  cede  away  the  least  of  their  sovereign  powers, 
in  order  to  form  another  government  for  the  United  States, 
than  they  had  to  abdicate  the  whole  in  favor  of  the  British 
crown.  The  adoption  of  the  Articles  of  Confederation  by  the 
states  was  an  act  of  irresponsible  power  in  the  same  line  of 
procedure  by  which  that  power  had  been  at  first  acquired. 

§  63.  "  The  necessity  for  union,  and  the  pressure  of  the 
national  principle  as  embodied  in  the  Declaration  of  Inde- 
pendence, were  so  strong  that  the  Articles  of  Confederation 
could  not  represent  simply  and  purely  the  idea  of  state  sov- 
ereignty ;  and  a  very  cursory  examination  of  these  articles 
in  the  light  of  contemporary  discussions,  reveals  the  fact  that 
they  recognize  both  of  these  hostile  principles  limiting,  and,  to 
a  certain  extent,  neutralizing  each  other.  In  certain  provis- 
ions it  seems  impossible  not  to  recognize  a  decided  represen- 
tation of  the  principle  of  one  nationality,  and  by  no  means  a 
feeble  tentative  toward  the  formation  of  a  national  govern- 
ment. This  attempt,  however,  was  frustrated  by  the  number 
and  extent  of  the  sovereign  powers  claimed  as  reserved  to 
themselves  by  the  states,  and  by  them  prohibited  to  the  Con- 
federacy ;  in  which  the  principle  of  state  sovereignty  was 
represented  as   predominant." 

§  64.  An  examination  of  the  most  important  features  of 
the  Articles  of  Confederation,  will  clearly  show  that  the  fore- 
going language  is  entirely  correct.  I  shall  first  present  a  short 
abstract  of  the  whole  instrument,  and  shall  then  describe  the 
general  character  of  the  government  which  it  constitutes,  ant) 


THE   PERIOD    OF   THE   CONFEDERATION.  45 

ascertain  and  unfold  the  ideas  which  were  embodied  in  this 
political  fabric.  This  review  will  be  of  great  assistance  in  the 
study  of  the  present  Constitution.  Nothing  can  better  indi- 
cate the  nature  of  the  existing  organic  law  than  the  sharp 
contrasts  between  it  and  the  Articles  of  Confederation. 

§  65.  The  Articles  themselves  purport  to  be  made  by  the 
"  Delegates  of  the  United  States  of  America  in  Congress  as- 
sembled,"  and  to  be  ratified  by  the  delegates  in  virtue  of 
power  and  authority  for  that  purpose  specially  conferred  upon 
them  by  the  state  legislatures,  and  are  entitled  "  Articles  of 
Confederation  and  Perpetual  Union  between  the  States." 
The  instrument  establishes  the  following  fundamental  rules 
and  stipulations  for  the  government  of  the  federation :  — 

1.  That  its  name  shall  be  the  United  States  of  America. 

2.  That  each  state  retains  its  sovereignty  and  power  which 
is  not  by  this  Confederation  expressly  delegated  to  the  United 
States  in  Congress  assembled. 

3.  That  the  states  severally  enter  into  a  firm  league  of 
friendship  with  each  other  for  their  common  defence  and  wel- 
fare. 

4.  That  the  free  inhabitants  of  each  state  shall  be  entitled 
to  all  the  privileges  of  free  citizens  in  the  several  states ;  that 
no  citizen  of  one  state  shall  be  subject  to  any  restrictions  upon 
trade  and  commerce  in  any  other  state  which  are  not  also  im- 
posed upon  the  citizens  of  the  latter ;  that  no  duties  shall  be 
Wl  by  any  state  upon  the  property  of  the  United  States  ; 
that  fugitives  from  justice  shall  be  given  up,  and  full  faith 
given  to  the  records  and  judicial  proceedings  of  every  state. 

5.  That  a  congress  of  delegates  shall  be  established  in  the 
following  manner :  Each  year,  every  state  shall  appoint  and 
maintain,  in  whatever  manner  it  shall  please,  not  less  than 
two  nor  more  than  seven  delegates,  who  shall  meet  yearly  ; 
but,  in  the  congress  thus  constituted,  each  state  shall  be  enti- 
tled to  but  one  vote. 

6.  That  no  state,  without  the  consent  of  the  United  States 
m  Congress  assembled,  shall  send  or  receive  any  ambassador ; 
nor  make  any  treaty  with  a  foreign  nation  or  with  another 
state ;  nor  lay  any  duty  or  impost  which  will   interfere  with 


40  HISTORICAL  SKETCH. 

stipulations  contained  in  treaties  entered  into  by  the  United 
States  in  Congress  assembled  ;  nor,  in  time  of  peace,  keep  up 
any  vessels  of  war  or  bodies  of  troops,  except  its  own  militia; 
nor  engage  in  war,  unless  invaded;  nor  fit  out  privateers,  ex- 
cept after  a  declaration  of  war  by  the  United  States  in  Con- 
gress assembled. 

7.  That,  when  troops  are  raised  by  any  state  for  the  com- 
mon defence,  all  officers  of  and  under  the  rank  of  colonel  shall 
be  appointed  by  that  state. 

8.  That  all  common  expenses  shall  be  defrayed  out  of  a 
common  treasury,  to  be  supplied  by  the  states  in  proportion 
to  the  amount  of  private  lands  in  each  ;  but  the  levying  and 
collecting  taxes  to  pay  their  proportions  are  to  be  entirely 
under  the  control  of  the  legislatures  of  the  states. 

9.  That  the  powers  of  the  United  States  in  Congress  assem- 
bled shall  be  as  follows :  To  declare  war  and  make  peace  ;  to 
send  and  receive  ambassadors  ;  to  make  treaties,  under  the  re- 
striction that  no  treaty  shall  be  made  destroying  the  right  of  a 
state  to  lay  imposts  and  duties ;  to  establish  rules  for  the  dis- 
position of  captures  and  prizes  made  in  war  ;  to  appoint  final 
courts  of  appeal  in  prize  causes ;  to  decide,  on  appeal,  all  con- 
troversies between  two  or  more  states,  in  a  manner  particu- 
larly defined  ;  to  regulate  the  value  of  all  coin  struck  by  the 
United  States  or  by  the  respective  states  ;  to  regulate  the 
standard  of  weights  and  measures ;  to  establish  and  regulate 
post  offices ;  to  appoint  all  officers  of  the  land  forces  in  the 
service  of  the  United  States,  excepting  regimental  officers, 
and  all  officers  of  the  naval  forces  ;  to  make  rules  for  the  gov- 
ernment of  these  forces ;  to  appoint  a  member  of  Congress 
president  of  that  body  ;  to  ascertain  the  sum  of  money  neces- 
lary  for  the  expenses  of  the  United  States,  and  appropriate 
the  same  when  received  ;  to  borrow  money ;  to  build  and 
equip  a  navy ;  to  agree  upon  the  number  of  land  forces 
needed,  and  to  make  requisitions  upon  each  state  for  its  quota 
of  such  forces,  which  quotas  are  then  to  be  raised  and  fur- 
nished by  the  respective  states. 

A  concurring  vote  of  nine  states  in  Congress  assembled 
was  made  necessary  to  enable   that  body  to  engage  in  war, 


THE   PERIOD   OF   THE    CONFEDERATION.  47 

grant  letters-of-marque,  make  treaties,  coin  or  regulate  the 
value  of  money,  ascertain  the  sums  of  money  necessary  for 
the  public  expense,  emit  bills,  borrow  money,  appropriate 
money,  create  or  increase  a  navy,  raise  land  forces,  or  appoint 
a  commander-in-chief.  All  other  measures,  except  adjourning 
for  want  of  a  quorum,  required  a  concurring  vote  of  a  majority 
of  the  states  in  Congress  assembled. 

Articles  10,  11,  and  12  are  unimportant. 
The  final  article  was  as  follows  :  Each  state  shall  abide  by 
the  determination  of  the  United  States  in  Congress  assembled, 
on  all  questions  which  by  this  Confederation  are  submitted  to 
them.  And  the  articles  of  confederation  shall  be  inviolably 
observed  by  the  several  states,  and  the  Union  shall  be  perpet- 
ual ;  nor  shall  any  alteration,  at  any  time  hereafter,  be  made 
in  any  of  them,  unless  such  alteration  be  agreed  to  in  a  Con- 
gress of  the  United  States,  and  be  afterwards  confirmed  by 
the  legislature  of  every  state. 

§  SG.  Such,  in  substance,  was  the  fundamental  law  of  the 
Confederation.  But  I  have  used  an  incorrect  term.  This 
was  in  no  respect  a  law  ;  it  had  none  of  the  essential  elements 
of  law.  It  was  not  enacted  by  the  supreme  power  in  the 
state  ;  it  was  not  cast  in  the  form  of  a  command,  nor  did  it 
confer  on  the  government  which  it  constituted  any  power  to 
utter  a  command  ;  it  imposed  no  legal  duties  ;  it  contained  no 
sanctions  by  which  obedience  could  be  compelled.  It  was 
rather  in  its  nature  a  treaty,  to  be  observed  as  long  as  the 
contracting  powers  saw  fit  to  yield  to  its  requirements,  and  no 
farther.  In  truth,  it  was  disregarded  from  the  very  beginning, 
and  at  last  became  a  mere  dead  letter,  with  capacity  only  to 
hinder  and  thwart  all  attempts  at  development,  to  destroy  all 
national  and  individual  prosperity. 

Some  salient  points  in  this  constitution  and  government 
■jlearly  indicate  its  character,  and  reveal  the  ideas  which  were 
controlling  in  its  formation.  We  may  profitably  notice  these 
points,  and  pass  by  the  minor  details  which  were  contrived  to 
make  the  plan  effective. 

§  67.  I.  The  first  important  and  distinctive  feature  to  be 
noticed  is  the  entire  absence  of  any  formal  recognition  of,  or 


48  HISTORICAL  SKETCli. 

reference  to,  the  existence'  of  a  nation.  The  People  of  the 
United  States  are  not  once  mentioned ;  the  presence  and 
supreme  attributes  of  that  organic  aggregate  are  completely 
ignored  ;  no  power  is  represented  as  derived  from  them,  and 
none  as  conferred  upon  them  ;  for  even  the  slender  concessions 
made  by  the  states  are  not  granted  to  the  People,  nor  even  to 
the  United  States  as  a  political  society  distinct  from  its  gov- 
ernment, but  only  to  the  United  States  as  represented  by  its 
government,  —  to  the  "United  States  in  Congress  assem- 
bled." As  a  consequence,  there  is  no  status  of  United  States 
citizenship  created  or  recognized  ;  we  have  free  inhabitants  and 
citizens  of  the  respective  states,  but  no  citizen  of  the  United 
States. 

§  G8.  The  formative  elements  which  were  combined  in  this 
political  structure  were  not  individuals,  but  were  the  sovereign, 
independent  states,  united  in  a  friendly  league  for  their  mutual 
defense  and  welfare ;  and  all  powers  not  expressly  delegated 
to  the  Congress  were  declared  to  be  reserved  by  the  several 
states  to  themselves.  Here  we  perceive  that  the  national 
idea  had  been  tacitly  abandoned,  or,  at  least,  totally  lost  sight 
of.  The  People  who  revolted,  and  who,  through  their  dele- 
gates, had  announced  to  the  world  their  own  independence 
and  sovereignty,  had  no  part  nor  voice  in  this  new  creation. 
They  never  adopted  it  by  any  formal  act.  It  was  not  even 
the  work  of  their  delegates.  Nay,  the  people  of  the  respect- 
ive states  were  not  its  direct  authors ;  but  the  legislatures  of 
these  commonwealths  assumed  the  power  thus  to  restrain  the 
sovereignty  of  their  own  constituents. 

It  is  plain  that,  upon  the  extreme  States'-Right  theory  even, 
this  assumption  was  a  palpable  usurpation.  No  legislature  is 
so  supreme  that  it  can,  without  direct  authority,  cede  away  the 
inherent  political  attributes  and  organic  social  existence  of  the 
body-politic  it  represents.  But  the  jealousies  of  the  state 
politicians,  and  the  local  rivalries  fostered  by  them,  had  tem- 
porarily blinded  the  people  and  their  public  servants  to  their 
true  interests,  and  to  the  rightful  claims  of  the  nation.  If 
some  pure  patriots  perceived  the  real  position  of  affairs,  and 
attempted   to   impress   upon    their   countrymen    the   nationa 


THE  PERIOD   OF   THE   CONFEDERATION.  49 

ideas,  their  voices  were  drowned  in  the  clamors  of  state  par- 
tisans, and  their  arguments  and  warnings  were  powerless 
against  state  pride  and  prejudice. 

§  69.  II.  The  second  feature  to  be  noticed  is,  that  the  few 
powers  possessed  by  the  United  States  were  not  directed 
against  individuals,  but  against  communities,  against  the  re- 
spective states.  Congress  could  not  take  money  from  the 
people  by  means  of  taxation  ;  it  could  only  direct  the  states 
to  act.  Congress  could  not  enlist  a  soldier  ;  it  could  only  de- 
termine the  number  of  troops  needed  for  the  common  defence, 
and  request  the  states  to  furnish  their  respective  amounts. 
And,  if  we  go  through  the  whole  range  of  its  legislative  and 
executive  functions,  we  shall  find  the  same  principle  at  work, 
—  a  government  acting  upon  independent  states  considered  as 
separate,  organized,  political  societies,  and  not  upon  the  single 
individuals  whose  aggregates  compose  those  societies. 

There  is  no  more  important  and  distinctive  element  than 
this  in  the  whole  scheme  of  the  confederated  government,  — 
nothing  in  which  it  contrasts  more  strongly  with  the  present 
Constitution.  For  herein  lies  the  very  essence  of  the  States'- 
Right  theory ;  herein  was  distinctly  embodied  the  claim  of  the 
states  to  paramount  sovereignty.  This  was  the  crowning 
feature  of  the  old  Confederation,  the  perfected  result  of  those 
notions  which  had  then  obtained  the  supremacy,  and  the  con- 
ceded cause  of  all  the  disastrous  and  miserable  consequences 
which  followed  from  ill-considered  and  self-destructive  organ- 
ization. And,  finally,  this  feature  was  entirely  abandoned, 
and  the  government  restored  to  its  true  basis,  by  the  conven- 
tion which  framed,  and  the  people  who  adopted,  the  present 
Constitution. 

§  70.  III.  The  third  point  to  be  noticed  is,  that  the  Uni- 
ted States  government  possessed,  absolutely,  no  authority  to 
enforce  any  of  its  enactments,  to  compel  obedience  to  any  of 
its  laws.  In  fact,  it  could  only  recommend,  it  could  not  com- 
mand. It  was  left  entirely  to  the  option  of  the  respective 
states,  whether  or  not  any  of  the  congressional  requisitions 
upon  them  should  be  observed.  The  government  was  with- 
out any  coercive  means  of  raising  even  the  smallest  amount 
1 


50  HISTORICAL    SKETCH 

of  money.  If  it  was  fortunate  enough  to  borrow,  it  could 
offer  no  assurance  of  an  ability  to  pay.  It  could  lay  no  du- 
on  imports  or  exports,  levy  and  collect  no  taxes,  command 
none  of  the  resources  for  maintaining  the  common  lefence  or 
promoting  the  common  welfare.  This  inability  to  raise  money 
by  any  authoritative  measures,  was  the  essential  element  of 
weakness,  which  made  it  a  government  in  name  only,  a  mere 
solemn  sham,  and  exposed  it  to  the  ridicule  of  its  own  people 
and  of  foreign  nations. 

§  71.  Again,  the  Congress  was  the  sole  organ  of  the  gov- 
eminent.  No  independent  executive  was  constituted  to  direct 
the  national  affairs  ;  no  independent  judiciary  was  authorized 
to  expound  the  provisions  of  the  compact  and  determine  the 
functions  of  the  central  and  the  state  legislatures.  Congress 
might,  indeed,  prescribe  regulations  for  the  disposition  of  prizes 
and  captures  taken  in  war,  but  could  give  these  rules  no  sanc- 
tion. It  could  create  final  courts  of  appeal  in  prize  causes,  but 
the  decisions  of  these  tribunals  were  mere  nullities,  for  there 
was  no  executive  arm  to  enforce  them.  The  legislatures  and 
courts  of  the  respective  states  retained  the  substantial  power, 
and  this  they  constantly  used  with  hardly  a  thought  or  notice 
of  the  shadowy  attributes  conferred  upon  the  general  govern- 
ment. 

§  72.  IV.  The  last  general  feature  to  be  noticed  is,  the 
limited  extent  of  the  nominal  powers  granted  to  the  United 
States  Congress.  Most  of  these  had  reference  to  the  prose- 
cution of  war.  The  Articles  of  Confederation,  in  a  very  great 
measure,  relate  to  a  state  of  hostilities.  The  condition  of 
peace,  and  the  ordinary  operations  of  government  in  seasons 
of  tranquillity,  are  barely  alluded  to;  all  this  was  left  to  the 
local  commonwealths.  Congress  might  regulate  the  value  of 
coin;  might,  together  with  the  states,  coin  money;  might  fix 
the  standard  of  weights  and  measures;  might  establish  post- 
offices  ;  and  this  brief  enumeration  exhausts  the  list  of  those 
powers  which  have  reference  to  internal  affairs,  unconnected 
with  war.  In  the  foreign  relations  its  functions  were  nom- 
inally unlimited,  for  it  might  declare  war,  make  treaties,  send 
and  receive  ambassadors.     But  these  concessions  were  prac* 


THE   PERIOD    OF   THE    CONFEDERATION.  51 

ticalfy  nugatory,  for  it  could  neither  raise  troops  to  fill  its 
armies,  or  money  to  pay  them  ;  nor  could  it  procure  the  stip- 
ulations of  its  treaties  to  be  observed,  for  the  courts  of  the 
thirteen  states  were  supreme  in  expounding,  and  the  legisla- 
tures in  carrying  out,  the  provisions  of  these  international 
compacts. 

§  To.  Such  was  the  government  of  the  United  States  dur- 
ing the  Confederation,  a  name  without  a  body,  a  shadow 
without  a  substance.  The  consequences  of  this  plan  of  gov- 
ernment upon  the  material  prosperity  of  the  peopie,  upon  the 
development  of  the  states  and  the  Union  in  all  that  consti- 
tutes national  greatness,  upon  the  estimate  in  which  the 
country  was  held  by  foreign  powers,  were  such  as  might  have 
been  anticipated  from  a  political  organization  contrived  in 
utter  disregard  of  all  the  lessons  of  history,  and  in  complete 
opposition  to  all  true  principles  of  civil  polity. 

§  74.  These  consequences  are  very  accurately  described  by 
the  writer  quoted  abo^e.1  "  The  history  of  the  Confederation 
during  the  twelve  years  beyond  which  it  was  not  able  to 
maintain  itself,  is  the  history  of  the  utter  prostration,  through- 
out the  whole  country,  of  every  public  and  private  interest,  — 
of  that  which  was,  beyond  all  comparison,  the  most  trying 
period  of  our  national  and  social  life.  For  it  was  the  extreme 
weakness  of  the  confederate  government,  if  such  it  could  be 
called,  which  caused  the  war  of  independence  to  drag  its  slow 
length  along  through  seven  dreary  years,  and  which,  but  for 
a  providential  concurrence  of  circumstances  in  Europe,  must 
have  prevented  it  from  reachino;  any  other  than  a  disastrous 
conclusion.  When,  at  last,  peace  was  proclaimed,  the  confed- 
erate congress  had  dwindled  down  to  a  feeble  junto  of  about 
twenty  persons,  which  was  so  degraded  and  demoralized,  that 
its  decisions  were  hardly  more  respected  than  those  of  any 
voluntary  and  irresponsible  association.  The  treaties  which 
the  Confederation  had  made  with  foreign  powers,  it  was  forced 
to  see  violated,  and  treated  with  contempt  by  its  own  mem- 
bers ;  which  brought  upon  it  distrust  from  its  friends,  and 
scorn  from  its  enemies.  It  had  no  standing  among  the  nations 
1  Princeton  Review,  October,  1861,  pp.  618,  619. 


52  HISTORICAL    SKETCH. 

of  the  world,  because  it  had  no  power  to  secure  the  faith  of  its 
national  obligations.  For  want  of  an  uniform  system  of  duties 
and  imposts,  and  by  conflicting  commercial  regulations  in  the 
different  states,  the.  commerce  of  the  whole  country  was  pros- 
trated and  well-nigh  ruined.  Private  indebtedness  was  almost 
universal,  and  there  was  no  business  or  industry  to  provide  for 
its  liquidation.  Bankruptcy  and  distress  were  the  rule  rather 
than  the  exception.  The  government  was  loaded  with  an 
enormous  debt,  and  had  no  authority  to  provide  for  the  pay- 
ment of  either  principal  or  interest,  whence  its  credit  was 
paralyzed.  The  currency  of  the  country  had  hardly  a  nominal 
value." 

§  75.  "  The  states  themselves  were  objects  of  jealous  hos- 
tility to  each  other.  The  mouth  and  lower  waters  of  the 
Mississippi  were  controlled  by  Spain,  who  prohibited  their 
navigation  ;  and  whilst  the  Eastern  States  were  urgent  that 
her  claims  should  be  acknowledged  for  the  sake  of  advantages 
to  their  commerce,  the  whole  Western  valley,  with  its  de- 
pendencies, was  on  the  verge  of  separation  from  the  East,  in 
order  to  maintain,  at  all  hazards,  the  rights  of  way  to  the 
ocean  on  that  father  of  floods.  The  internal  peace  of  the 
country  wTas  threatened,  and  a  civil  Avar  seemed  inevitable 
from  the  discontent  of  the  officers  of  the  revolution,,  for  whose 
sacrifices  and  necessities  Congress,  in  open  breach  of  the  public 
faith,  yet  from  sheer  inability,  had  failed  to  make  any  com- 
pensation or  provision.  Nothing  but  the  personal  influence  of 
Washington  over  the  officers  themselves  averted  this  calamity. 
In  some  of  the  states  rebellion  was  already  raising  its  horrid 
front,  threatening  the  overthrow  of  all  regular  government 
and  the  inauguration  of  universal  anarchy.  It  is  difficult  for 
us  to  conceive  of  the  panic  which  Sliays's  rebellion  in  Massa- 
chusetts spread  throughout  the  country,  and  of  the  peril  to 
which  the  whole  fabric  of  society  was  exposed  from  organized 
bands  of  ten  or  fifteen  thousand  armed  men  bent  on  cancelling, 
at  the  point  of  the  bayonet,  all  public  and  private  indebtedness, 
and  excited  to  madness  with  lust  of  plunder.  Ah!  what  a 
picture  of  general  gloom  and  distress,  of  patriot  anguish  and 
despair,  is  presented  in  the  contemporary  history  of  the  con- 
federate government." 


ADOPTION   OF   THE    CONSTITUTION.  63 


SECTION    III. 

PROCEEDINGS    WHICH    DIRECTLY   LED    TO    THE    ADOPTION    OP    TOB 
CONSTITUTION. 

§  76.  The  alarming  results  of  the  policy  which  had,  for  a 
while,  abandoned  the  idea  of  one  nationality,  and  taken  up 
that  of  independent  state  sovereignty,  were  producing  their 
legitimate  effects  upon  the  people.  It  was  seen  that  some- 
thing must  be  done,  and  that  at  once  ;  for  the  wheels  of  gov- 
ernment had  actually  stopped,  and  society  would  ere  long 
become  disintegrated.  What  to  do,  what  measures  to  adopt, 
was  as  yet  involved  in  doubt  and  dispute.  An  amendment 
to  the  Articles  of  Confederation,  which,  it  will  be  remembered, 
would  require  the  assent  of  Congress  and  of  the  legislature  of 
every  state,  was  at  first  suggested.  The  public  acts  of  Con- 
gress and  of  the  various  legislatures  at  the  time,  point  to  this 
remedy  ;  show  conclusively  that  those  who  managed  the  pub- 
lic affairs  were  prepared  to  take  no  further  step  than  the  mere 
reforming  and  enlarging  the  existing  government.  This  fact 
is  important  to  be  noticed  ;  for  it  is,  in  many  respects,  the  key 
to  the  subsequent  action  of  the  constitutional  convention  and 
of  the  people. 

§  77.  Let  us  take  a  rapid  review  of  the  proceedings  of  the 
various  legislative  bodies,  which  terminated  in  the  ratification 
of  the  present  Constitution. 

On  the  21st  of  January,  1786,  the  legislature  of  Virginia 
adopted  a  resolution  and  appointed  commissioners  "  who  were 
to  meet  such  as  might  be  appointed  by  the  other  states  of  the 
Union,  at  a  time  and  place  to  be  agreed  on,  to  take  into  con  ■ 
sideration  the  trade  of  the  United  States  ;  to  examine  the  rela- 
tive situation  and  trade  of  the  said  states  ;  to  consider  how  far 
a  uniform  system  in  their  commercial  relations  may  be  neces- 
sary to  their  common  interest,  and  their  permanent  harmony ; 
*nd  to  report  to  the  several  states  such  an  act  relative  to  this 
great  object,  as,  when  unanimously  ratified  by  them,  will  ena 


r)4  HISTORICAL    SKETCH. 

r 

ble  the  United  States,  in  Congress  assembled,  effectually  to 
provide  for  the  same."1 

Four  states  only,  New  York,  New  Jersey,  Pennsylvania, 
and  Delaware,  responded  to-  this  call  ;  and  their  delegates, 
together  with  those  of  Virginia,  met  at  Annapolis  in  Septem- 
ber, 1786.  Deeming  their  numbers  too  small,  and  their 
powers  too  limited  for  any  permanent  good,  they  separated 
after  making  a  report  to  the  several  states  and  to  Congress,  in 
which  they  recommend  that  the  states  should  appoint  commis- 
sioners, "  to  meet  at  Philadelphia  on  the  second  Monday  of 
May  next,  to  take  into  consideration  the  situation  of  the  Uni- 
ted States,  to  devise  such  further  provisions  as  shall  appear  to 
them  necessary  to  render  the  constitution  of  the  federal  gov- 
ernment adequate  to  the  exigencies  of  the  Union  ;  and  to 
report  such  an  act  for  that  purpose  to  the  United  States  in 
Congress  assembled,  as,  when  agreed  to  by  them,  and  after- 
wards confirmed  by  the  legislatures  of  every  state,  will  effect- 
ually provide  for  the  same."  2 

§  78.  After  some  delay,  Congress  acted  upon  this  sugges- 
tion, and  on  the  21st  day  of  February,  1787,  passed  a  reso- 
lution, wherein,  after  reciting  the  power  given  in  the  Articles 
of  Confederation  to  amend  the  same,  and  the  existence  of 
defects  demanding  a  remedy,  they  recommend  that  "  a  con- 
vention of  delegates,  who  shall  have  been  appointed  by  the 
several  states,  be  held  at  Philadelphia,  for  the  sole  and  express 
purpose  of  revising  the  Articles  of  Confederation,  and  report- 
ing to  Congress  and  the  several  legislatures  such  alterations 
and  provisions  therein  as  shall,  when  agreed  to  in  Congress, 
and  confirmed  by  the  states,  render  the  Federal  Constitution 
adequate  to  the  exigencies  of  government,  •  and  the  preser- 
vation of  the  Union."  3 

§  79.  The  Convention  thus  recommended  by  Congress  met 
at  the  time  and  place  appointed,  and  was  composed  of  dele- 
gates from  twelve  states.  Rhode  Island  alone  refused  to  be 
represented. 

1  See  Elliot's  Debates,  Vol.  1,  p.  115. 

2  Ibid.  pp.  116-118. 

3  Ibid.  pp.  119,  120. 


ADOPTION  OF   THE   CONSTITUTION.  55 

This  Convention  proceeded  to  do,  and  did  accomplish,  what 
they  were  not  authorized  to  do  by  the  resolution  of  Congress 
that  called  them  together.  That  resolution  plainly  contem- 
plated amendments  to  the  Articles  of  Confederation,  to  be 
submitted  to  and  passed  by  the  Congress,  and  afterwards 
ratified  by  all  the  state  legislatures,  in  the  manner  pointed 
out  by  the  existing  organic  law.  But  the  Convention  soon 
became  convinced  that  any  amendments  were  powerless  to 
effect  a  cure  ;  that  the  disease  was  too  deeply  seated  to  be 
reached  by  such  tentative  means.  They  saw  that  the  system 
they  were  called  to  improve  must  be  totally  abandoned,  and 
that  the  national  idea  must  be  reestablished  at  the  centre  of 
their  political  society. 

§  80.  It  was  objected  by  some  members,  that  they  had  no 
power,  no  authority,  to  construct  a  new  government.  They 
certainly  had  no  authority,  if  their  decisions  were  to  be  final ; 
and  no  authority  whatever,  under  the  Articles  of  Confederation, 
to  adopt  the  course  they  did.  But  they  knew  that  their  labors 
were  only  to  be  suggestions  ;  and  that  they  as  well  as  any 
private  individuals,  and  any  private  individuals  as  well  as 
they,  had  a  right  to  propose  a  plan  of  government  to  the  peo- 
ple for  their  adoption.  They  were,  in  fact,  a  mere  assemblage 
of  private  citizens,  and  their  work  had  no  more  binding  sanc- 
tion than  a  constitution  drafted  by  Mr.  Hamilton,  in  his  office, 
would  have  had.  The  people,  by  their  expressed  will,  trans- 
formed this  suggestion,  this  proposal,  into  an  organic  law,  and 
the  people  might  have  done  the  same  with  a  constitution  sub- 
mitted to  them  by  a  single  citizen.  This  point,  that  the  Con- 
vention had  no  authority  for  the  work  they  actually  did,  that 
they  were  mere  volunteers,  is  one  of  great  importance,  and 
has  not  received  the  attention  it  deserves  from  those  writers 
who  have  expounded  the  fundamental  law. 

§  81.  On  the  17th  of  September,  1787,  the  Convention 
completed  their  labors,  laid  the  proposed  Constitution  before 
Congress,  and  advised  "  that  it  should  be  submitted  to  a 
sonvention  of  delegates  chosen  in  each  state  by  the  people 
thereof  nnder  a  recommendation   of  its  legislature,  for  their 


51  HISTORICAL    SKETCH. 

assent  and  ratification."1  The  Constitution  itself  provided 
that,  when  ratified  by  at  least  nine  states,  it  should  become 
established  in  the  states  so  ratifying  the  same.2 

The  Convention  also  enforced  their  recommendation  by  a 
letter  addressed  to  Congress  and  through  them  to  the  country, 
from  which  some  extracts  will  be  interesting.  "  In  all  our 
deliberations  we  kept  steadily  in  our  view  that  which  appears 
to  us  the  greatest  interest  of  every  true  American,  —  the  con- 
solidation of  our  Union,  in  which  is  involved  our  prosperity, 
felicity,  safety,  perhaps  our  national  existence.  This  impor- 
tant consideration,  seriously  and  deeply  impressed  on  our 
minds,  led  each  state  in  the  Convention  to  be  less  rigid,  on  points 
of  inferior  magnitude,  than  might  have  been  otherwise  expect- 
ed ;  and  thus,  the  Constitution,  wdiich  we  now  present,  is  the 
result  of  a  spirit  of  amity,  and  of  that  mutual  deference  and 
concession  which  the  peculiarity  of  our  political  situation  ren- 
dered indispensable." 

§  82.   What  was  the  real  meaning  of  all  these  proceedings  ? 

The  Convention  knew  that  they  were  not  amending  the 
Articles  of  Confederation  ;  for  in  that  case  the  proposed  alter- 
ations must  be  submitted  to  Congress,  and  then  to  the  state 
legislatures,  and  approved  by  all  ;  but  in  no  instance  would 
any  direct  reference  to  the  people  be  necessary.  They  knew, 
on  the  contrary,  that  they  were  proposing  a  new  government, 
and  that  in  creating  this  government,  neither  they,  nor  Con- 
gress, nor  the  legislatures  of  the  states,  had  the  slightest 
power,  the  smallest  voice  ;  that  such  a  creation  was  the  work 
of  the  people  alone,  of  the  nation  in  its  imperial  capacity,  by 
virtue  of  imperial  powers  which  existed  in  them  indissoluble 
and  incommunicable,  above  and  beyond  all  existing  forms,  all 
congresses,  legislatures,  and  state  organizations.  To  the  peo- 
ple, then,  they  appealed.  But  the  people  could  only  express 
their  will  by  voting,  and  to  vote  requires  some  organized 
method.  The  Convention  itself  could  not  provide  means  for 
taking,  ascertaining,  and  publishing  this  vote,  for  they  were 
in  fact,  a  mere  body  of  volunteers,  without  any  power  excep' 

1  Resolution  of  Convention,  Elliot's  Debates,  Vol.  1,  p.  16. 

2  Constitution,  Art.  VII. 


ADOPTION   OF   THE    CONSTITUTION.  57 

that  moral  influence  which  knowledge  and  worth  always  give. 
Nor  could  Congress  make  the  provision,  for  this  was  an  emer- 
gency which  the  Articles  of  Confederation  had  not  anticipated  ; 
any  attempt  of  Congress  to  submit  the  proposed  plan  to  the 
people,  would  have  been  without  warrant,  a  mere  nullity. 
The  state  governments  were  the  only  bodies  which  possessed 
the  requisite  ability  to  call  upon  the  people,  duly  and  in  order 
to  register  their  supreme  and  sovereign  decree  in  reference  to 
the  question  before  them,  and  thus  to  render  the  popular  act 
legal  in  form  as  well  as  in  substance.  Therefore  the  Consti- 
tution was  handed  over  to  the  various  state  legislatures  as 
mere  depositaries  and  agents,  for  them  to  submit  to  the  peo- 
ple. Were  this  to  be  done  in  our  own  time,  the  submission 
would  doubtless  be  direct ;  but  ideas  of  popular  government 
were  not  quite  so  advanced  at  the  close  of  the  last  century  as 
they  are  in  our  own  day  ;  and  the  only  act  of  the  people 
deemed  possible  was  that  of  delegating  their  powers  to  special 
representatives  who  should  meet  and  ratify  the  instrument  in 
their  name.  This  was  the  proceeding  advised  by  the  framers 
of  the  Constitution  and  followed  by  the  state  authorities.  All 
were  acting  merely  as  the  channels,  the  mechanical  means,  to 
ascertain,  convey,  and  publish  the  will  of  the  real  nation. 

§  83.  While  the  Constitution  was  before  the  people  awaiting 
their  approval,  the  friends  and  partisans  of  the  state-sovereignty 
theory  marshalled  their  forces  and  attacked  it  with  a  virulence 
and  malignity  of  which  we  can  now  hardly  form  a  conception. 
They  understood  the  effect  of  the  change  ;  they  knew  that 
local  power  was  slipping  away  from  them,  and  that  local  pride 
must  be  humbled  before  the  majesty  of  the  nation.  But  they 
felt  that  it  would  be  unsafe  to  discuss  the  question  of  ratifica- 
tion from  this  standpoint  alone,  and  therefore  assailed  the  gov- 
ernment as  a  mere  scheme  of  tyranny.  They  declared  that 
it  would  be  destructive  of  all  liberty.  They  pronounced  the 
Executive  to  be  worse  than  an  absolute  monarch,  and  pre- 
dicted that  he  would  soon  be  able  to  usurp  all  power,  and  to 

reign  for  life,  without  the  aid  of  Congress  and  without  refer- 
ee '  o 

ence  to  the  people.  These  attacks  called  forth  from  the  pens 
of  Hamilton,  Madison,  and  Jay,  a  series  of  letters  since  known 


68  HISTORICAL   SKETCH. 

as  The  Federalist,  which  exerted  a  most  powerful  influence  ir 
producing  the  final  result,  and  which  have  been,  and  will  re- 
main, an  authority  to  the  courts,  and  a  text-book  to  political 
students,  one  of  the  most  complete  and  profound  expositions  of 
the  science  of  government  that  has  ever  appeared. 

§  84.  Conventions  in  eleven  states  having  ratified  the  Con- 
stitution,1 Congress,  on  the  13th  of  September,  1788,  took 
measures  for  the  election  of  officers,  and  on  the  4th  of  March, 
1789,  the  present  government  commenced  the  exercise  of  its 
functions.  North  Carolina  did  not  ratify  until  the  21st  of 
November,  1789,2  and  Rhode  Island  until  the  29th  of  May, 
1790.3 

Having  thus  sketched  the  external  history  of  the  adoption 
of  our  Constitution,  and  examined  the  nature  of  the  various 
acts  which  preceded  that  event,  to  the  end  that  the  true  na- 
tional character  of  the  political  society  and  of  its  organic  law 
might  be  discovered,  I  shall,  in  the  following  chapter,  interro- 
gate the  instrument  itself  with  the  same  intent. 

1  See  the  official  ratifications  of  the  several  states,  Elliot's  Debates,  VoL 
l,pp.  319-331. 

2  Elliot's  Debates,  Vol.  1,  p.  333. 

3  Ibid.  p.  334. 


CHAPTER  III. 

fHE  NATIONAL  ATTRIBUTES  INVOLVED  IN  THE  PROVISIONS  OF 
THE  CONSTITUTION. 

SECTION  I. 

DISTINCTION    BETWEEN    THE    GOVERNMENT    AND    THE   NATION. 

§  85.  In  the  preceding  chapter  I  have  spoken  of  those  grand 
salient  facts  in  the  history  of  our  people  which  seem  to  stamp 
a  distinctive  character  upon  our  political  society,  —  the  com- 
bined revolt,  the  united  declaration  of  independence,  the  sub- 
sequent receding  from  the  high  ground  of  nationality  during 
the  short  and  disastrous  period  of  the  Confederation,  and  the 
final  return  to  the  early  and  true  idea  of  unity  and  nationality 
by  the  voluntary  act  of  the  people  in  pushing  aside  the  crumb- 
ling fabric  of  government  built  on  the  foundation  of  state 
sovereignty,  and  adopting  one  emanating  directly  from  them- 
selves, as  the  expression  of  their  organic  will.  We  are  now 
prepared  to  interrogate  the  Constitution  itself,  and  to  discover 
if  the  answers  which  it  shall  return  accord  with  the  principles 
and  doctrines  contained  in  the  facts  of  our  history. 

§  86.  It  is  natural  to  expect  that  the  work  will  represent,  in 
some  measure,  the  condition  and  thought  of  the  artificer ;  and 
if  the  one  people  of  these  United  States  are  the  authors  of  an 
organic  law,  we  may  well  ask  if  they  have  left  any  trace  of 
their  oneness  and  nationality  in  the  product  of  their  sovereign 
political  action. 

But  here  it  is  necessary  to  repeat  and  elaborate  a  general 
doctrine  which  has  already  been  dwelt  upon  with  some  empha- 
sis, and  which  must  be  constantly  recalled  to  mind  through 
the  whole  course  of  the  present  inquiry  as  the  solution  of  many 
a  difficulty   and   apparent  contradiction.     This    truth    is,   the 


GO  NATIONAL   ATTRIBUTES   INVOLVED. 

absolute  and  necessary  distinction  between  the  nation  which 
is  the  source  of  political  power,  and  the  government  which  is 
the  creature  of  that  power,  established  to  act,  in  certain  cases, 
instead  of,  or  as  the  agent  of,  that  nation. 

§  87.  We  affirm  that  the  People  of  these  United  States  are 
the  nation,  possessed  of  supreme  powers,  and  that  the  govern- 
ment of  the  United  States  is  their  creature  and  agent.  All 
those  theorists  who  deny  the  original  and  essential  unity  and 
nationality  of  this  people,  declare  that  the  separate  states  are 
or  were  the  original  nations.  As  a  consequence  it  is  either 
expressly  maintained,  or  tacitly  assumed,  that  there  is  no 
United  States  apart  from  the  limited  government  created  by 
the  Constitution  ;  in  a  word,  that  the  United  States,  and  the 
government  thereof,  which  we  recognize  as  distinct,  are  one 
and  the  same  existence.  In  this  short  sentence  are  summed 
up  the  differences  between  the  advocates  of  nationality,  and 
those  of  state  sovereignty.  If  we  fail  to  apprehend  the  truth 
of  the  doctrine  which  I  have  stated,  we  shall  fail  to  obtain  any 
adequate  conception  of  the  imperial  character  of  the  people  as 
an  organic  political  society. 

§  88.  Nor  is  the  thought  peculiar  to  our  own  social  con- 
dition ;  it  is  a  dogma  which  lies  at  the  basis  of  all  political 
science.  The  French  nation  has  continued  one  and  the  same, 
while  its  government  has  taken  the  successive  forms  of  Mon- 
archy,  Republic,  Empire,  Monarchy,  Republic,  and  Empire, 
again.  These  several  forms  were,  for  the  time  being,  the 
recognized  organs  and  channels  for  the  utterance  and  execu- 
tion  of  the  organic  will  of  the  people,  in  whom  alone,  as  the 
final  source,  reside  all  the  attributes  and  functions  of  legisla- 
tion. 

The  English  people  remained  one  nation  through  the  whole 
gradual  but  grand  progress  of  constitutional  change  and  de- 
velopment, from  the  time  of  the  earliest  Norman  kings  down 
to  the  temporary  overthrow  of  the  monarchy  under  Cromwell, 
to  its  unqualified  restoration  in  the  persons  of  the  seconc 
Charles  and  the  second  James,  to  its  subsequent  limitation 
on  the  accession  of  William  of  Orange,  and  to  its  presen 
sxistence  as  a  splendid  but  empty  pageant. 


DISTINCTION  BETWEEN  NATION  AND   GOVERNMENT.    61 

The  people,  the  nation,  live  on,  subject  only  to  destruction 
by  overwhelming  force  or  by  the  gradual  decay  of  race  life ; 
the  governments  come  and  go,  with  no  inherent  qualities  of 
their  own,  but  only  as  the  representatives  of  the  nation's  will. 

§  89.  The  powers  which  can  be  lawfully  wielded  by  a  gov- 
ernment may  range  through  an  ascending  scale,  from  those 
so  feeble  that  the  agent  has  hardly  an  appreciable  existence,  to 
those  so  complete  that  they  express  the  entire  sovereignty  of 
the  nation.  Over  the  form  of  its  own  government,  a  nation 
has  an  absolute  control.  It  may  declare  that  no  powers  shall 
be  given  to  delegated  rulers  ;  that  itself  shall  deliberate,  shall 
determine,  act,  and  execute  in  every  emergency ;  or,  in  other 
words,  it  may  itself  use  all  the  sovereign  authority  which  in- 
heres in  every  nation,  without  the  intervention  of  any  consti- 
tuted agents.  It  is  evident,  therefore,  why  a  pure  democracy 
must  be  the  most  terrible  of  tyrannies,  because  there  is  no 
check,  no  limit  upon  the  exercise  of  authority ;  since  the 
people,  who  are  everywhere,  and  at  all  times,  the  source  of 
power,  and  who,  in  other  forms  of  political  society,  place  some 
restraint  upon  the  use  of  that  power  by  themselves,  now  wield 
it  to  its  full  measure,  with  no  organic  law  compelling  them,  no 
guide  but  their  own  wish. 

§  90.  On  the  other  hand,  the  people,  the  nation,  may  clothe 
the  government  constituted  by  them  with  all  the  political  at- 
tributes and  functions  which  they  themselves  enjoy,  and  may 
thus  remove  the  necessity  of  any  direct  formal  interference  by 
themselves  to  make  changes  in  the  organic  law.1  This,  as  it 
seems  to  me,  is  true  in  Great  Britain.  The  government  is 
Parliament,  consisting  of  King,  Lords,  and  Commons.  This 
parliament  is,  in  fact,  omnipotent.  The  British  Constitution 
is  nothing  more  than  the  will  of  the  people,  not  expressed  by 
them  directly  in  a  written  instrument  or  in  any  other  positive 
manner,  as  in  our  own  country,  but  expressed  by  and  through 
the  Parliament ;  and  over  this  constitution  the  legislature  has 
complete  power  to  amend,  alter,  or  destroy.     When  we  talk 

1  It  should  be  remarked  that  no  form  of  government  can  prevent  or 
dtstroy  the  extra-legal,  or  revolutionary  capacity  of  the  people  to  inte* 
fere. 


62      DISTINCTION  BETWEEN  NATION  AND   GOVERNMENT. 

or  read  of  the  constitutional  rights  of  the  British  subject,  we 
mean  such  rights  as  Parliament  has  conferred,  or  has  suffered 
him  to  enjoy  ;  and  the  same  body  that  bestowed  may  take 
away.  Parliament  deposed  one  king,  and  established  a  mili- 
tary rule  under  the  name  of  the  Protectorate  ;  declared  that 
another  king  had  abdicated,  and  presented  the  crown,  under 
many  restrictions,  to  a  successor.  Parliament  might  abolish 
Magna  Charta,  the  Bill  of  Rights,  the  Habeas  Corpus  ;  it  is, 
as  far  as  human  government  can  be,  omnipotent.  That  it  has 
not  exercised  its  full  power  ;  that  it  is  bound  by  traditions  and 
the  received  law ;  that  it  represents  and  acts  for  the  people 
and  not  against  their  interests  ;  that  it  is,  in  a  true  sense,  con- 
servative and  not  destructive;  —  are  not  denied  as  facts  :  but 
I  am  not  speaking  of  what  may  probably,  but  of  what  may 
possibly,  happen.  The  same  government  which  abolished  the 
disabilities  of  Roman  Catholics,  and  admitted  Jews  to  a  seat 
in  the  House  of  Commons,  may  destroy  the  English  Church 
as  a  temporal  organization  ;  the  same  government  which  passed 
the  Reform  Bill  in  1832,  and  thus  accomplished  what  has  been 
called  a  "bloodless  revolution,"  may  grant  universal  suffrage,1 
and  at  last  dispense  with  royalty  and  privileged  orders.  I  do 
not  predict  such  changes  in  England  ;  I  only  say  that  should 
they  ever  come  about,  they  may  be  effected  by  the  existing 
government,  in  the  regular  course  of  administration,  without 
an  appeal  to  the  people  in  their  collective  capacity  as  the  final 
depositaries  of  all  political  powers. 

§  91.  While,  therefore,  the  people,  the  nation,  is  sovereign, 
and  not  the  machinery  which  it  has  established  in  order  that 
its  power,  or  some  portion  thereof,  may  be  regularly  exerted  ; 
and  while  this  machinery  may  be  arranged  according  to  an 
nfinite  variety  of  plans,  we  cannot  expect  to  find  in  the  detail 
of  these  plans  an  unerring  index  of  the  character  of  the  society 
which  exists  behind  and  superior  to  them.  The  nation  may 
have  so  limited  the  attributes  of  the  government  as  hardly  to 
suggest  the  existence  of  a  national  authority ;  or  it  may  have 

1  The  act  lately  passed  by  Parliament  is  certainly  a  long  step  toward 
universal  suffrage,  and  it  may  not  be  rash  to  assume  that  before  many 
years  Parliament  will  complete  the  work  thus  begun. 


NATIONALITY   OF   THE   CONSTITUTION.  63 

so  enlarged  them,  that  the  body  politic  is  apparently  lost  in  its 
own  creation. 

The  government  ordained  and  established  in  the  Constitu- 
tion of  the  United  States  is  not  to  be  ranked  with  either  of 
these  extremes.  It  is  limited  indeed.  Very  many  legislative 
and  administrative  powers  are  withheld  from  it ;  but  those 
conferred  are  national  in  their  essence  and  in  their  extent ; 
while  the  nationality  of  the  body  which  created  it,  appears  in 
characters  too  plain  to  be  misunderstood.  It  should  also  be 
remembered  that,  at  the  time  of  the  adoption  of  the  Constitu- 
tion, ideas  of  state  sovereignty  were  very  prevalent,  and  had 
for  a  time  been  generally  accepted  ;  and  that,  as  the  Constitu- 
tion—  that  is,  the  form  and  functions  of  the  government  — 
was  the  result  of  a  compromise  between  the  advocates  of  two 
contending  principles,  we  shall  find  in  its  provisions  evident 
traces  of  the  doctrine  of  separate  state  sovereignty.  But  this 
fact  does  not  militate  against  our  position  ;  for,  in  truth,  the 
whole  organic  law  might  have  been  framed  so  as  to  leave  the 
administration  of  affairs  entirely  in  the  hands  of  the  individ- 
ual states,  and  yet  have  been  the  work  of  one  sovereign  body 
politic. 

SECTION  II. 

THE  IMPORTANT  AND  DISTINCTIVE  NATIONAL  ELEMENTS  IN  THE 
CONSTITUTION  ITSELF;  IN  THE  ATTRIBUTES  AND  FUNCTIONS  OF 
THE    GOVERNMENT. 

§  92.  The  immediate  subject  upon  which  we  are  engaged, 
to  wit :  the  independent  and  paramount  sovereignty  of  the 
nation,  which  is  the  people  of  the  United  States,  will  be  con- 
cluded by  a  brief  reference  to  those  portions  of  the  organic 
law  wherein  that  fact  is  either  openly  and  directly  expressed 
and  declared,  or  tacitly  admitted. 

1.    The  Preamble. 
§  93.  The  Constitution  opens  with  the  grand  announcement, 
confirming  the  result  of  our  historica.  analysis,  that  this  funda- 
mental  law,  and  the  government    created    thereby,  are    the 


61  THE   PREAMBLE. 

work  of  the  people  of  the  United  States,  ordained  and  estab- 
lished by  them  and  not  by  the  several  states  ;  and  as  an  inev- 
itable consequence,  that  the  powers  conferred  on  this  new- 
made  government  were  not  delegated  by  the  states  in  any 
sovereign  independent  capacity  of  theirs,  but  by  the  people  of 
the  United  States  as  a  municipium  or  nation. 

"  We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  ensure  domestic  tranquil 
lity,  provide  for  the  common  defence,  promote  the  genera 
welfare,  and  secure  the  blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  establish  this  Constitution  for  the 
United  States  of  America." 

§  94.  Here  is  the  calm,  sublime  statement  of  self-existence, 
of  inherent  and  unlimited  power,  —  a  power  of  national  and 
fundamental  legislation  for  the  purposes  of  protection  to  them- 
selves as  a  body  politic,  and  not  to  the  states  as  separate  polit- 
ical societies.  No  amplification  or  argument  can  add  force  to 
this  short  and  simple  expression  of  an  organic  will.  However 
much  the  states  may  have  exercised  usurped  attributes  of 
sovereignty  during  the  unhappy  Confederation  ;'  however  much 
the  conception  of  one  people  acting  as  an  unit  may  have  been 
forgotten  or  abandoned  amid  the  jealousies  and  destructive 
rivalries  of  the  commonwealths  claiming  substantial  independ- 
ence ;  the  people  had  now  arisen,  reasserted  the  original  idea, 
repudiated  the  assumptions  of  local  supremacy,  and  uttered 
their  organic  will  in  terms  which  we  hope  will  have  a  mean- 
ing and  a  power  to  the  end  of  time.  This  is  the  rock  upon 
which  many  of  the  great  champions  of  nationality  among 
American  statesmen  have  planted  themselves  in  their  conflicts 
with  opposing  schools,  and  from  which  they  were  never  dis- 
lodged b\  the  fiercest  assaults  of  extreme  or  moderate  parti- 
sans of  state  sovereignty. 

§  95.  Finally,  this  solemn  preamble  was  understood  to  be 
so  complete  an  answer  to  the  claims  of  the  separate  common- 
wealths to  any  independent  supremacy,  that  when  the  seceding 
southern  states,  asserting  this  claim,  and  basing  their  right  to 
act  thereon,  met  to  frame  a  new  constitution  for  their  confed- 
eracy, they  rejected  the  preamble  set  forth  by  their  fathers 


NATIONALITY   OF   THE   CONSTITUTION.  65 

and  .adopted  one  which  reads  as  follows  :  "  We,  the  people 
of  the  Confederate  States,  each  state  acting  in  its  sovereign 
and  independent  character,  in  order  to  form  a  permanent  fed- 
eral government,  establish  justice,  ....  do  ordain  and 
establish  this  constitution  for  the  confederate  states  of  Ameri- 
ca." x  Thus  have  the  opponents  of  our  nationality,  by  their 
most  solemn  and  deliberate  acts,  conceded  the  correctness  of 
the  construction  which  has  been  placed  upon  this  utterance 
of  the  sovereign  people  of  the  United  States. 

2.    The  Enacting  Clauses. 

§  96.  If  we  pass  from  this  preamble  or  preface,  to  the  sub- 
stantial grants  of  power  contained  in  the  Constitution  itself,  we 
shall  find  equally  strong  evidence  of  nationality  in  the  essen- 
tial character  of  these  powers.  It  must  be  remembered,  how- 
ever, that  it  is  not  the  form  but  the  attributes  of  the  govern- 
ment, that  testify  as  to  the  nature  of  the  political  society  which 
creates  it,  and  over  which  it  dominates.  There  is  nothing  in 
the  threefold  division  into  Executive,  Legislative,  and  Judi- 
cial departments,  which  necessarily  implies  the  existence  of 
sovereignty.  The  government  of  each  state,  and  of  many 
cities,  is  formed  upon  the  same  model.  It  is  the  jurisdiction 
of  these  several  departments  —  that  which  they  may  lawfully 
do,  or  that  from  which  they  are  bound  to  forbear  —  which 
stamps  their  authors  as  sovereign  or  subordinate. 

§  97.  It  is  a  maxim  of  political  as  well  as  of  private  law, 
that  an  agent  cannot  hold  and  exercise  functions  transcending 
those  possessed  by  the  principal  who  appoints  him  and  author- 
ize him  to  act.  The  powers  he  enjoys  may  be  less  in  extent 
and  (ewer  in  number  than  those  which  inhere  in  that  princi- 
pal, but  they  cannot  be  greater  or  more  numerous.  When, 
therefore,  we  find  the  government  of  the  United  States  clothed 
with  functions  which  the  several  states  have  never  possessed, 
either  before  or  since  the  Declaration  of  Independence,  we 
may  infer  without  hesitation,  that  such  functions  were  not 
derived  from  them. 

We  are  now  prepared  to  examine  some  of  the  most  impor- 

1  See  Appleton's  Ann.  Am.  Cyclo.for  1861,  p.  158. 
5 


36  DECLARATION  OF  SUPREMACY, 

tant  of  these  features  of  the  Constitution  and  attributes  of 
the  government  which  testify  to  the  nationality  of  the  one 
body  politic,  and  against  any  assumed  sovereignty  of  the  sev- 
eral commonwealths. 

§  98.  I.  TJie  Declaration  of  Supremacy.  —  First  and  fore- 
most :  "  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  Supreme  Law  of  the  Land,  and 
the  judges  in  every  state  shall  be  bound  thereby,  any  thing  in 
the  constitution  or  laws  of  any  state  to  the  contrary  notwith- 
standing." * 

What  is  the  full  import  of  this  often-quoted  declaration  ?  It 
means  that  so  far  as  the  people  of  the  United  States,  the 
nation,  have  seen  fit  to  delegate  a  portion  of  their  own  inher- 
ent powers  of  legislation  and  government  to  their  appointed 
rulers,  just  so  far  those  appointed  rulers  are  supreme  through- 
out the  land  in  the  exercise  of  those  delegated  powers.  It 
confers  an  absolute  supremacy  upon  the  general  government, 
commensurate  with  the  capacities  which  are  granted  at  all.  It 
also  recognizes  and  proceeds  upon  the  truth  that  the  political 
society  which  assumed  thus  to  transfer  legislative  and  adminis- 
trative functions  to  its  creature,  had  the  right  to  make  such  a 
transfer,  —  in  a  word,  had  inherent  and  absolute  sovereignty 
in  itself. 

§  99.  It  should  be  noticed  also  that  this  affixing  the  charac- 
ter of  absolute  supremacy  to  the  laws  of  the  United  States, 
made  in  pursuance  of  the  Constitution,  is  not  confined  to  the 
direct  legislation  of  Congress.  According  to  the  political  or- 
ganization which  Ave  have  in  common  with  England,  a  portion 
only  of  the  actual  law-making  is  done  by  the  Congress  or  the 
legislature.  The  courts  are  also  possessed  of  a  function  not 
only  to  expound  and  apply  rules  already  known  and  recog- 
nized, but  in  reality  to  enact  others  whenever  a  proper  occa 
sion  may  arise  in  the  decision  of  cases  before  them.  A  very 
large  part  of  the  law  which  regulates  the  affairs  of  business 
and  the  private  rights  of  persons,  has  never  received  the  sanc- 
1  Constitution,  Art.  VI.  §  2. 


NATIONALITY   OF   THE   CONSTITUTION.  67 

tion  of  the  legislature,  but  has  found  its  sources  and  authors 
in  the  independent  judiciary.1  The  judgments  of  the  United 
States  courts,  expounding  a  statute,  construing  the  Constitu- 
tion, or  adding  a  new  rule  to  the  vast  body  of  judicial  legisla- 
tion within  their  especial  jurisdiction,  are  as  much  laws  of  the 
United  States  as  the  formal  acts  which  have  been  passed  by 
Conoress  and  have  received  the  assent  of  the  President.  The 
character  of  supremacy  belongs  to  all  these ;  the  language  of 
the  Constitution  is  general,  and  includes  every  form  and  spe- 
cies of  legislation  which  can  exert  a  binding  force  upon  the 
citizen.  This  is  a  truth  which  most  writers  have  either  en- 
tirely overlooked,  or  have  failed  to  consider  with  the  care  that 
its  importance  demands. 

§  100.  Interpretation  of  the  Tenth  Article  of  the  Amend- 
ments. —  The  force  of  the  constitutional  provision  which  we 
are  considering  (Art.  VI.  §  2),  is  not  at  all  weakened  by  the 
tenth  article  of  the  Amendments,  when  the  latter  is  correctly 
read  and  understood.  This  amendment  is  in  the  following 
words  :  "  The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  states,  are  reserved 
to  the  states  respectively,  or  to  the  people."  That  a  true  con- 
struction may  be  put  upon  this  amendment,  it  should  be  read 
in  connection  with  the  one  which  immediately  precedes  it,  and 
which  was  adopted  at  the  same  time,  as  follows :  "  The  enum- 
eration in  the  Constitution  of  certain  rights  shall  not  be  con- 
strued to  deny  or  disparage  others  retained  by  the  people."  2 

§  101.  The  tenth  article  just  quoted  is  often  assumed  to  be 
a  clear  recognition  of  the  former  sovereignty  of  the  separate 
states ;  but  nothing  can  be  more  unfounded  and  fallacious  than 
this  claim.     Those  who  insist  upon  this  meaning  must  alter 

1  See  Pomeroy's  Introduction  to  Municipal  Laic,  Part  I.  chap,  iii.,  where 
this  subject  of  judicial  legislation  is  considered  at  large. 

See  also  Austin's  Province  of  Jurisprudence,  Vol.  2,  Lects.  XXXVII. 
and  XXXVIII.,  in  which  the  character  of  judicial  decision  as  lata  is  dem- 
onstrated, its  peculiarities  explained,  and  its  merits  and  demerits,  as  com- 
oared  with  statute  law,  are  set  forth.  The  theory  of  Blackstone,  that 
courts  only  declare  what  has  always  been  law,  and  do  no-t  create,  is  con- 
clusively shown  to  be  not  only  false,  but  absurd. 

2  Ninth  Art.  of  the  Amendments. 


S8  THE   TENTH   AMENDMENT. 

the  language,  and  read  it  as  though  the  reservation  of  powers 
were  made  by  the  states  and  not  to  them.  The  clause  should 
be  compared  with  the  second  of  the  Articles  of  Confederation, 
which  reads :  '-Each  state  retains  its  sovereignty, freedom, and 
independence,  and  every  power,  jurisdiction,  and  right  which 
is  not  expressly  delegated,"  &c.  The  change  of  prepositions 
in  the  tenth  amendment  would  apparently  be  a  slight  one, 
but  it  would  be  mighty  in  import  and  results.  Powers  are 
said  to  be  reserved ;  and  it  is  plain  enough  to  whom  the  reser- 
vation is  made,  —  to  the  states  and  to  the  people.  This  pro- 
vision, however,  does  not  tell  us  by  whom  the  reservation  is 
made  ;  that  fact  must  be  gathered  from  the  history  of  the 
nation,  from  the  whole  tenor  of  the  Constitution,  from  its 
entire  scope  and  design,  and  from  its  preamble.  The  body 
which  conferred  portions  of  its  powers  upon  the  government 
which  it  had  created,  is  alone  capable  of  reserving  the  re- 
siduum to  itself,  or  to  any  other  body.  This  single  political 
society  which  confers  and  which  reserves  is  the  people  of  the 
United  States,  the  nation  itself.  By  reading  the  two  amend- 
ments together,  this  meaning  is  made  plain.  The  ninth  arti- 
cle speaks  of  rights  retained  by  the  people ;  the  tenth,  of 
powers  reserved  to  the  states.  The  former  recognizes  the 
people  as  the  one  source  of  all  power,  as  they  could  not  retain 
what  they  were  not  before  possessed  of;  the  latter  speaks  of 
some  powers  which  had  not  been  conferred  by  the  people  on 
its  general  government,  as  allotted  to  the  states.  The  former 
points  out  the  giver ;  the  latter,  the  recipients. 

I  remark,  in  passing,  that  the  term  "  United  States,"  in  the 
tenth  amendment,  plainly  describes  the  government  estab- 
lished by  the  Constitution,  and  not  the  political  society  which 
lies  back  of  that  organic  law,  and  which  was  its  author.  The 
same  term  is  often  applied  to  both  these  subjects,  although  the 
Constitution  generally  uses  the  word  "  people  "  to  designate 
the  latter. 

§  102.  II.  Tfie  Status  of  Citizenship.  —  The  Constitution 
recognizes  our  nationality  by  assuming  that  the  status  of  citi- 
zenship, and  the  consequent  duty  of  allegiance,  exist  independ 
ently  of  that  instrument.     In  this,  the  present  organic  law  is  \\ 


NATIONALITY   OF  THE   CONSTITUTION.  69 

oold  contrast  with  the  Articles  of  Confederation.  Were  our 
government  a  mere  federation  of  equal,  sovereign  states, 
united  for  certain  purposes  of  administration,  there  could  be 
no  real  nation  and  no  citizenship.  The  status  of  the  citizen 
had  been  clearly  defined,  and  the  word  had  attained  a  definite 
meaning,  long  before  our  fathers  employed  it  in  the  Constitu- 
tion. It  implies  a  political  society,  —  a  nation,  —  of  which  the 
individual  is  a  member,  to  which  he  owes  allegiance,  and 
which  is  bound  to  give  him  protection.  Now,  it  is  to  be 
observed  that,  while  the  Constitution  nowhere  in  terms  defines 
the  status  of  citizenship,  or  declares  what  persons  shall  be  ad- 
mitted thereto,  it  does  assume  its  existence,  and  provide  for  all 
the  consequences  that  flow  from  the  relation ;  the  general  gov- 
ernment has  exclusive  power  to  admit  persons  of  foreign  birth 
to  that  condition  ;  while  the  article  in  relation  to  treason 1 
recognizes  the  duty  of  allegiance,  for  the  essence  of  the  crime 
of  treason  is  the  violation  of  allegiance.  The  word  "  alle- 
giance  "  is  fruitful  in  meaning.  Etymologically  it  is  the  bind- 
ing of  the  citizen  by  a  chain  of  duty  to  the  body-politic  of 
which  he  is  a  member.  It  therefore  implies  a  nation  and  his 
own  membership  thereof.  Senator  Mason,  of  Virginia,  and 
other  partisans  of  state  sovereignty,  were  strictly  logical  in 
asserting  that  they  owed  allegiance  only  to  their  own  com- 
monwealth, and  not  to  the  United  States. 

§103.  III.  The  Proprietorship  of  Public  Lands.  —  The 
Constitution  recognizes  our  nationality  in  providing  for  the 
ownership  by  the  United  States  of  all  new,  unappropriated 
public  lands  within  the  borders  of  the  states  and  territories.2 
The  King  of  Great  Britain  is  said  to  be  the  ultimate  owner  of 
the  soil,  and  is  the  proprietor  of  all  the  domain  not  allotted  to 
private  holders.  The  United  States  succeed  to  his  title.  Dur- 
ing the  Confederation,  while  the  idea  of  nationality  was  ob- 
scured, the  states  separately  ceded  to  the  general  government 
whatever  title  had  been  claimed  by  either  of  them  to  all  un- 
appropriated Western  lands,  and  only  retained  the  proprietor- 
ship of  that  within  their  immediate  territorial  limits.  This 
title  hns  been  continued,  and  has  been  extended  over  all  sub- 
1  Art.  III.  Sec.  III.  2  Art.  IV.  See,  III.  §  2. 


70  LEGISLATIVE   POWERS. 

sequent  acquisitions  by  purchase  or  conquest.  Nor  docs  the 
ownership  pass  from  the  United  States,  and  vest  in  a  particu- 
lar state,  when  the  latter  becomes  organized  as  a  separate  com- 
monwealth, throws  off  its  territorial  character,  and  is  admitted 
as  a  state  into  the  Union  ;  but  the  nation  retains  its  property, 
and  from  it  must  all  private  purchasers  derive  their  rights. 
This  original  and  paramount  dominion  in  the  newly  acquired 
soil  which  may  be  added  to  the  territory  of  the  country,  is  a 
high  attribute  of  sovereignty,  and  indicates  that  the  United 
States  is  an  independent  body -politic^  and  not  a  mere  agent  to 
carry  on  certain  governmental  acts. 

§  104.  IV.  The  Legislative  Poicers.  —  The  Constitution 
recognizes  our  nationality  in  the  essential  character  of  the 
legislative  powers  that  are  conferred  upon  Congress.  It  will 
be  remembered  that  it  is  not  the  number,  but  the  extent,  of 
these  powers  which  stamp  them  as  national.  The  people 
have  all  powers  ;  they  may  retain  some  dormant ;  they  may 
delegate  others  to  the  general  government ;  they  may  permit 
others  to  be  exercised  by  the  separate  states.  Now,  it  is  evi- 
dent that  those  which  they  have  entrusted  to  their  immediate 
agent  —  the  general  government,  which  represents  the  whole 
nation  —  are  of  a  far  higher  class,  more  imbued  with  the  essen- 
tial attributes  of  sovereignty,  than  those  which  they  have  per- 
mitted to  be  exercised  by  the  state  governments,  which  repre- 
sent local  and  partial  communities.  What  are  some  of  the 
more  important  of  these  powers  which  the  Congress  may  wield 
and  enforce  against  the  individuals  who  compose  the  total  ag- 
gregate ? 

§  105.  Those  which  are  held  exclusively  by  the  United 
States,  or,  in  other  words,  which  are  denied  to  the  separate 
states,  are  the  following:  The  regulation  of  commerce  ;  the  ad- 
mission to  citizenship  by  naturalization  ;  the  coining  of  money  ; 
the  establishment  of  post-offices ;  the  granting  of  patent  and 
copy  rights  ;  the  declaring  of  war ;  the  raising  and  support  of 
armies  and  navies,  and  the  government  of  the  same.  In  addi- 
tion, the  Congress  has  unlimited  power  to  lay  taxes  of  all 
kinds,  —  some  to  the  exclusion  of  the  states,  — as  duties  on 
imports ;  others  in  connection  with  the  states ;  with  the  further 


NATIONALITY   OF   THE   CONSTITUTION.  71 

prerogative  that  the  taxing  power  of  the  general  government 
is  superior  and  paramount,  and  must  first  be  satisfied  before 
the  local  commonwealths  can  put  into  operation  their  subordi- 
nate function  of  taxation.  Finally,  the  general  government 
is  to  be  the  sole  judge  of  what  particular  measures  are  fit, 
proper,  and  necessary  in  order  to  carry  these  general  grants 
of  power  into  practical  execution.  I  have  not  here  enumer- 
ated all  of  the  legislative  functions  of  the  United  States  Con- 
gress, but  only  noticed  those  most  important  for  the  purposes 
of  the  present  inquiry. 

§  106.  The  mere  recital  of  these  tells  its  own  story.  Can 
that  political  society  possess  any  attribute  of  sovereignty,  which 
is  forbidden  to  wage  offensive  or  defensive  war,  and  thus  to 
maintain  its  own  existence  ;  and  which  is  unable  to  raise  and 
support  an  army  or  navy ;  and  which  is  deprived  of  the  right 
to  coin  money ;  and  which  possesses  no  control  over  com- 
merce ;  and  which  must  exercise  its  power  of  taxation  in 
subordination  to  another  body-politic  ?  To  predicate  sover- 
eignty of  commonwealths  debarred  from  these  functions,  is  to 
ignore  the  meaning  of  terms  and  the  nature  of  attributes. 

§  107.  V.  The  Executive  Powers.  —  The  Constitution  rec- 
ognizes our  nationality  in  the  essential  nature  of  the  powers 
conferred  upon  the  Executive.  He  is  the  commander-in-chief 
of  the  forces  of  the  United  States,  and,  as  such,  has  the  entire, 
exclusive  control  and  direction  of  war,  after  hostilities  have 
been  declared  and  armies  and  navies  raised  by  Congress.  He, 
with  the  advice  and  consent  of  the  Senate,  must  enter  into  all 
treaties  with  foreign  countries,  and  appoint  all  important  offi- 
cers in  the  general  service.  He  holds  intercourse  with  other 
nations  through  means  of  ambassadors.  Finally,  he  is  charged 
with  the  duty  of  executing  all  laws  of  the  United  States. 
These  are  attributes  of  independent  sovereignty,  capable  of 
being  conferred  on  an  official  only  by  the  political  society  in 
which  that  sovereignty  resides. 

§  108.  VI.  The  Judicial  Powers.  —  The  Constitution  rec- 
ognizes our  nationality  in  the  essential  character  of  the  powers 
conferred  upon  its  judiciary.  Many  of  these  are  exclusively 
held  by  the  courts  of  the  nation,  and  are  commensurate  with 


72  POWER   OF  AMENDMENT. 

the  legislative  functions  granted  to  the  government.  I  need 
now  refer  but  to  a  single  one  of  the  judicial  powers,  but  that 
one  is  of  the  utmost  importance.  As  the  Supreme  Cuurt  has 
jurisdiction  in  all  cases  arising  under  the  Constitution,  the  laws 
of  the  United  States,  and  treaties  made  under  their  authority, 
it  follows  that  this  tribunal  is  the  final  interpreter  of  the  Con- 
stitution and  of  all  laws  and  treaties  made  by  the  United 
States,  and  of  all  laws  made  by  the  several  states  so  far  as 
they  conflict  with  the  organic  law  ;  and  its  decisions,  forming 
a  part  of  the  great  body  of  unwritten  jurisprudence,  are  the 
supreme  law  of  the  land.  State  constitutions  and  laws,  as 
well  as  acts  of  Congress,  may  be  reviewed,  questioned,  con- 
demned, and  declared  null  and  void  by  the  national  judiciary. 
xso  other  court  in  the  world  is  clothed  with  such  functions. 

§  109.  VII.  Finally,  the  Constitution  recognizes  our  nation- 
ality in  providing  means  for  the  sovereign  people  to  make 
amendments  in  their  organic  law.  This  power  of  amendment, 
when  exercised  in  the  appointed  manner,  is  absolutely  unlim- 
ited. Article  V.  explains  the  methods  which  must  be  fol- 
lowed by  the  people  in  availing  themselves  of  this  inherent 
and  absolute  control  over  the  fundamental  law.  "  The  Con- 
gress, whenever  two  thirds  of  both  houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  Constitution,  or, 
on  the  application  of  the  legislatures  of  two  thirds  of  the  sev- 
eral states,  shall  call  a  convention  for  proposing  amendments, 
which  in  either  case  shall  be  valid  to  all  intents  and  pur- 
poses, as  a  part  of  this  Constitution,  when  ratified  by  the 
legislatures  of  three  fourths  of  the  several  states,  or  by  con- 
ventions in  three  fourths  thereof,  as  one  or  the  other  mode 
of  ratification  may  be  proposed  by  the  Congress ;  provided 
that  no  amendment  which  may  be  made  prior  to  the  year 
1808,  shall  in  any  manner  affect  the  first  and  fourth  clauses 
in  the  ninth  section  of  the  first  article  ;  and  that  no  state 
without  its  consent  shall  be  deprived  of  its  equal  suffrage  in 
the   Senate." 

§  110.  Here  is  no  limit  upon  the  power  of  amendment,  but 
only  upon  the  modes  in  which  that  power  shall  be  exerted. 
The  proviso  with  which  the  article  closes,  plainly  implies  that 


NATIONALITY   OF   THE    CONSTITUTION.  73 

amendments  may  be  adopted  which  oppose  further  and  greater 
limitations  upon  the  several  states,  than  those  under  which 
they  now  hold  certain  restricted  legislative  functions.  It  may 
be  remarked,  in  passing,  that  the  first  eleven  articles  of  the 
amendments,  which  were  adopted  almost  immediately  after 
the  establishment  of  the  present  government,  are  all  restrictive 
of  the  powers  of  that  government,  while  the  last  amendment 
abolishing  slavery  is  restrictive  of  the  powers  of  the  states, 
and  enlarges    those  of  Congress. 

Whatever  was  the  political  society  that  formed,  the  Con- 
stitution and  government  for  itself,  may  change  that  Constitu- 
tion and  government.  This  is  a  proposition  self-evident.  I 
need  not  repeat  the  reasons  which  have  been  already  ad- 
vanced to  show  that  the  one  people  of  the  United  States,  — 
the  nation,  —  is  the  sole  author  of  this  scheme  of  organiza- 
tion. 

§  111.  The  people,  if  they  were  the  original  authors,  may 
decree  a  revision.  If,  on  the  contrary,  the  separate  states 
were  the  original  creators,  they  alone  can  remodel  their  work, 
and  no  one  of  them  can  bind  the  others  :  each  has  only 
authority  within  its  own  jurisdiction ;  the  very  idea  of  sov- 
ereignty excludes  any  power  in  another  body-politic  to  limit 
the  functions  of  a  state  against  its  consent.  We  find,  there- 
fore, that  those  who  have  opposed  particular  amendments  — 
as  the  one  abolishing  slavery  —  on  the  ground  that  they 
were  beyond  the  authority  of  the  people  to  make,  have  been 
compelled  to  place  themselves  on  the  dogma  of  state  sover- 
eignty, as  the  sole  foundation  and  support  of  their  position. 
But  the  Constitution  in  this  very  article  recognizes  the  fact 
that  states  may  be  brought  under  the  sanction  and  obligation 
of  an  amendment,  without  their  assent,  and  even  with  their 
decided  opposition  ;  and  thus  another  is  added  to  the  many 
features  of  our  organic  law,  which  are  utterly  inconsistent 
with  any  assumed  sovereignty  in  the  separate  commonwealths. 
For,  granting  the  correctness  of  the  theory  that  the  several 
states  were  once  political  sovereignties,  and  that  each  surren- 
dered a  portion  of  its  inherent  powers  to  the  general  govern- 
ment, such  surrender  would  go   no  further  than  the  express 


74  POWER   OF  AMENDMENT. 

provisions  of  the  Constitution  ;  as  to  all  other  matters  not 
reached  by  that  instrument,  their  sovereignty  would  remain 
intact.  By  this  theory,  then,  it  is  entirely  impossible  that 
three  fourths  of  the  states  can  compel  the  remaining  one 
fourth  to  give  up  a  further  portion  of  their  attributes,  con- 
trary to   their  will. 

§  112.  But  our  nationality  does  not  need  to  be  supported  by 
arguments  so  apparently  technical.  It  rests  secure  on  the 
broad  ground  that  the  one  people  made,  and  they  alone  can 
unmake  ;  that  they  reared  the  original  structure,  and  have 
full  power  to  enlarge  and  extend  it.  The  capacities  residing 
in  them  are  boundless  ;  their  will,  under  God,  is  supreme  ; 
Constitutions  and  governments  are  their  instruments  and  ser- 
vants, not  their  masters. 

§  113.  Nor  is  the  force  of  this  general  truth  weakened  in 
the  case  of  our  own  nation,  by  the  carefully  arranged  formu- 
las according  to  which  the  people  must  proceed  to  ascertain 
and  record  their  sovereign  will  in  any  attempt  at  amendment. 
As  all  power  originally  and  now  resides  in  the  one  body  poli- 
tic, that  society  had,  among  others,  the  attribute  of  determin- 
ing the  means  and  methods  by  which  alone  it  could  effect,  in 
an  organized  and  lawful  manner,  a  revision  of  its  organic  law  ; 
of  marking  out  the  channel  through  which  alone  its  recon- 
structive  force  could  be  directed.  Among  a  thousand  differ- 
ent  schemes  it  had  an  unlimited  choice  ;  and  having  once 
chosen  it  could  declare  that  this  selection  was  irrevocable 
except  by  revolution.  For  revolution  is  nothing  but  the 
people  acting  above  and  beyond  the  constituted  order  of 
things,  in  defiance  of  what  has  been  considered  law,  but  still 
in  pursuance  of  inherent  powers  which  they  hold  superior  to 
law.  I  am,  therefore,  not  speaking  of  the  right  of  revolution, 
for  that  is  not  constitutional,  but  extra-constitutional. 

§  114.  Our  forefathers,  when  they  adopted  the  present  fun- 
damental law,  might  have  declared  that  amendments  thereto 
should  require  only  the  assent  of  a  majority  of  citizens  entitled 
to  suffrage ;  or  should  require  absolute  unanimity.  They 
might,  on  the  other  hand,  have  committed  the  entire  subject 
fo  Congress,  and  thus  have  made  our  government  similar  tc 


NATIONALITY   OF   THE   CONSTITUTION.  75 

that  of  Great  Britain  in  the  omnipotence  of  its  legislature. 
Of  the  motives  which  led  them  to  the  very  choice  they  made, 
it  is  not  necessary  for  us  now  to  inquire.  It  is  sufficient  for 
our  purpose  that  they  chose  a  certain  plan,  while  they  might 
have  adopted  any  other.  The  form,  therefore,  which  must 
be  pursued,  has  nothing  in  it  essential ;  it  does  not  modify, 
limit,  or  abridge  the  powers  which  can  be  wielded  by  and 
through  that  form.  All  the  separate  votes  of  Congress  and 
state  legislatures  or  conventions  are  but  the  machinery  that 
was  thought  serviceable  for  ascertaining  and  publishing  the 
popular  will.  If  the  Constitution  had  required  absolute  unan- 
imitv  among  voters,  then  any  amendment  might  have  been 
passed  by  unanimous  consent;  if  it  had  required  only  a  ma- 
jority of  all  voters,  then  any  amendment  might  have  been 
passed  by  such  majority  ;  if  the  reconstructive  power  had  been 
committed  to  Congress,  as  representatives  of  the  people,  then 
any  amendment  might  have  been  passed  by  Congress.  The 
fact  that  the  people  are  now  to  be  consulted,  not  in  the  aggre- 
gate, but  as  they  are  collected  into  local  communities  or  com- 
monwealths, does  not  affect  this  unlimited  power  of  revision  ; 
for  there  was  nothing  which  compelled  the  adoption  of  this 
particular  method,  it  was  only  chosen  from  motives  of  expe- 
diency. 

§  115.  The  result  of  this  discussion  is,  that  the  People  of 
the  United  States,  by  virtue  of  their  inherent,  absolute  attri- 
butes as  a  nation,  may,  by  following  the  order  prescribed  in 
the  Constitution,  adopt  any  amendments  thereto,  whether  such 
changes  would  enlarge  or  diminish  the  functions  of  the  general 
government,  whether  they  would  widen  or  contract  the  scope 
of  state  legislation.  Nay,  it  is  possible  that  the  idea  of  local 
self-government,  which  underlies  our  present  civil  polity, 
might  be  entirely  abandoned,  and  the  plan  of  complete  consol- 
idation substituted  in  its  stead ;  even  a  monarchy  might  be 
reared  in  the  place  of  the  present  republic.  It  is  true  that  the 
people  have  placed  an  almost  insurmountable  obstacle  to  such 
action  on  their  part,  for  they  have  required  a  species  of  unan- 
imity as  a  prerequisite  to  a  reconstruction  which  should 
destroy  the  states  as  distinctive  elements  in  our  political  organ- 


76  AMENDMENT  ABOLISHING  SLAVERY. 

ization.  "  No  state,  without  its  consent,  shall  be  deprived  of 
its  equal  suffrage  in  the  Senate."  God  forbid  that  the  people 
should  ever  be  led  to  give  up  the  safeguard  of  the  local  com- 
monwealths, the  idea  of  local  self-government  which  has  been 
to  England  and  to  us  the  life  of  liberty.  God  forbid  that  the 
people  should  ever  import  the  imperial  policy  of  consolidation, 
which  has  made  France  the  sport,  now  of  a  despot,  now  of  a 
mob,  at  Paris.  I  have  spoken,  not  of  what  is  probable,  but 
of  what  is  possible. 

§  11G.  Legality  of  the  amendment  abolishing  slavery.  — In  the 
present  connection  it  is  proper  to  examine  briefly  the  legality 
of  the  late  amendment  abolishing  the  status  of  slavery.  While 
the  measure  was  in  the  form  of  a  proposal  before  Congress 
and  the  people,  it  was  opposed  on  the  ground  that  it.  was 
unconstitutional ;  that  three  fourths  of  the  states  could  not 
make  it  binding  upon  the  dissenting  one  fourth.  Since  its 
adoption,  there  has  still  remained  a  feeling  in  some  portions 
of  the  country,  there  has  still  been  expressed  an  opinion  by 
certain  public  men  and  jurists,  that  it  is  a  mere  nullity.  These 
facts  furnish  an  ample  reason  for  dwelling  a  moment  upon  the 
subject. 

The  amendment  is  as  follows :  "  Article  XIII.  of  the 
Amendments :  Section  I.  Neither  slavery  nor  involuntary 
servitude,  except  as  punishment  for  crime  whereof  the  party 
shall  have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  in  any  place  subject  to  their  jurisdiction.  Section 
II.  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation." 

§  117.  The  most  important  objection  to  the  legality  of  this 
additional  article  of  the  Constitution  which  has  been  urged  by 
its  opponents,  will  be  found,  when  examined,  to  rest  upon  a 
denial  of  the  national  supremacy,  and  an  assertion  of  state 
sovereignty.  It  is  urged,  with  most  logical  accuracy  of  de- 
duction from  the  assumed  premises,  that  as  each  state  is  orig- 
inally sovereign,  its  inherent  attributes  and  capacity  cannot 
De  any  further  limited  or  restrained  without  its  consent ;  and 
jhat  as  the  Constitution  is  the  work  of  the  independent  supreme 
states,  the  provision  as  to  amendments  must  be  confined  ta 


NATIONALITY   OF   THE    CONSTITUTION.  77 

changes  in  the  detail  of  the  organization,  or  at  all  events  to 
such  changes  as  do  not  interfere  with  the  rights  and  powers 
of  the  local  commonwealths. 

I  need  not  repeat  the  argument  which  has  already  been 
advanced  against  this  entire  theory.  If  the  national  theory  be 
the  correct  one,  this  amendment  is  plainly  within  the  power 
and  capacity  of  Congress  to  propose  and  people  to  adopt. 

§  118.  But  certain  opponents  of  the  measure  seem  to  have 
joined  to  their  general  denial  of  authority  in  the  people,  a 
special  denial  in  this  case,  grounded  upon  the  assumed  peculiar 
character  of  the  institution  of  slavery.  They  have  urged 
that  it  is  a  domestic  institution  of  the  states,  and  is  therefore 
beyond  the  reach  of  the  nation  even  in  the  exercise  of  its  re- 
constructive functions.  Now  it  is  true  that  all  rights  which 
flow  directly  from  state  legislation  are  in  exactly  the  same 
sense  domestic ;  and  unless  all  such  are  absolutely  secure  from 
limitation  and  restraint  by  a  constitutional  amendment,  there 
is  no  special  element  of  domesticity  in  slavery  which  can  pro- 
tect it.  Slavery  derives  its  existence  solely  from  state  laws ; 
so  also  do  the  rules  which  regulate  the  status  of  marriage,  the 
ownership  and  descent  of  lands,  the  execution  of  wills,  the  ad- 
ministration of  the  estates  of  deceased  persons,  the  jurisdiction 
of  local  tribunals,  the  creation  of  local  corporations,  the  deter- 
mination of  what  persons  may  vote  for  members  of  the  lower 
House  of  Congress,  and  a  thousand  other  rights,  duties,  and 
capacities.  Do  not  all  of  these  subjects  rest  upon  the  same 
foundation,  and  are  they  not  all  finally  subordinate  to  the 
higher  power  of  the  one  body  politic?  The  lawfulness  of  an 
amendment  cannot  be  doubted  which  would  take  away  the 
present  right  of  the  states  to  prescribe  the  qualifications  of  con- 
gressional electors,  and  transfer  the  control  over  that  matter 
to  Congress.  No  one  except  a  partisan  of  state  sovereignty  will 
deny  that  the  people  may  withdraw  from  the  separate  com- 
monwealths all  power  to  create  banks,  and  may  commit  the 
currency  entirely  to  the  care  of  the  general  government.  If  it 
were  thought  expedient,  an  amendment  might  plainly  be 
adopted  giving  Congress  the  power  to  establish  throughout  tne 
country  uniform  rules  respecting  marriage,  the  ownership  and 


78  AMENDMENT  ABOLISHING   SLAVERY. 

descent  of  lands,  the  execution  of  wills,  the  administration  of 
estates.  Such  a  change  would  only  introduce  provisions  of  the 
same  general  character  as  that  which  now  confers  the  right  to 
establish  uniform  rules  respecting  bankruptcies,  and  many 
strong  reasons  of  convenience  could  be  urged  in  favor  of  the 
step.  But  marriage,  ownership,  succession,  and  the  like,  are 
as  clearly  domestic  in  their  character  as  slavery  ;  because  they 
relate  to  individuals  in  their  private,  and  not  in  their  political 
capacities,  and  because  they  are  at  present  regulated  by  state 
laws  alone.  Indeed,  those  who  intelligently  deny  the  power 
of  the  people  to  adopt  the  amendment  abolishing  slavery,  must 
fall  back  upon  the  view  which  considers  the  separate  states  as 
originally  and  now  sovereign  communities,  in  whose  policy 
and  functions  no  change  can  be  made  without  their  own  con- 
sent. The  denial  of  power  to  amend  would,  therefore,  extend 
to  many  other  subjects  besides  the  institution  of  slavery. 

§  119.  I  have  now  finished  the  first  general  division  of  the 
subject,  and  have  answered  the  question  proposed  at  the  outset, 
What  is  the  Constitution,  and  by  whom  was  it  created  ?  I 
think  that  it  has  been  demonstrated  from  the  history  of  the 
country,  from  the  controlling  provisions  of  the  instrument  itself, 
and  from  the  dormant  powers  which  it  recognizes  as  existing 
in  the  people,  that  the  Constitution  was  created  by  one  indivi- 
sible nation,  one  civil  society  possessing  political  sovereignty  — 
the  people  of  the  United  States,  —  and  that  it  is  the  organic 
law  of  that  nation. 

§  120.  I  hardly  need  apologize  for  dwelling  so  long  and  so 
minutely  on  this  theme.  The  important  lesson  in  which  the 
public  mind  now  demands  to  be  instructed,  is  that  of  our  own 
inherent  nationality.  It  cannot  be  denied  that  an  attachment, 
a  devotion  to  the  Union,  pervades  the  great  mass  of  citizens. 
The  blood  which  has  been  poured  out,  the  treasure  which  has 
been  expended,  the  burdens  which  have  been  cheerfully  as- 
sumed, abundantly  attest  this  fact.  But  this  has  been  rather 
die  result  of  a  sentiment,  than  of  an  enlightened  conviction 
The  sentiment  is  powerful  in  impelling  to  action,  but  it  should 
be  rooted  in  a  deliberate  opinion.  For  many  years  prior  ta 
,he  late  war  the  claims  of  the  states  to  supremacy  had  been 


NATIONALITY   OF  THE   CONSTITUTION.  79 

persistently  advanced  ;  the  true  theory  ignored  ;  the  teachings 
of  our  fathers  forgotten.  This  process  had  wrought  its  com- 
plete results  in  the  Southern  States  ;  that  it  had  not  done  the 
same  in  the  Northern,  was  not  owing  to  any  lack  of  endeavor. 
Now,  when  it  is  universally  conceded  that  the  extreme  theory 
of  state  sovereignty  is,  as  a  fact,  overthrown ;  now,  while  old 
things  are  passing  away,  and  we  are  in  the  midst  of  a  general 
awakening  to  our  higher  and  better  interests,  should  the  true 
ideas  of  nationality  be  deeply  impressed  upon  the  public  con- 
sciousness. 


PART   SECOND. 

W  WHAT  MANNER  AND  BY  WHOM  IS  THE  CONSTITUTION  TO  BE 
AUTHORITATIVELY  CONSTRUED  AND  INTERPRETED  ;  OR,  THE 
MEAN'S  AND  COMBINATIONS  FOR  ASSURING  THE  OBSERVANCE 
OF  THE  FUNDAMENTAL  LAW. 

§  121.  It  was  shown,  in  the  Introductory  Chapter,  that  the 
study  of  Political  Law  involves  not  only  the  questions,  In 
whose  hands  is  placed  the  exercise  of  governmental  powers? 
and,  To  what  laws  is  this  exercise  subjected  ?  but  also  the 
question,  By  what  means  and  combinations  is  the  observance 
of  these  laws  assured  ? 1  In  other  words,  this  department  of 
jurisprudence  includes  the  formal  organization  of  the  govern- 
ment, the  distribution  of  powers  and  functions,  and  the  checks 
and  sanctions  by  which  officials  are  kept  within  the  limits 
assigned  to  them.  I  now  proceed  to  a  brief  examination  of 
the  last  of  these  questions. 

§  122.  The  Constitution  of  the  United  States  is  a  Law, 
issued  by  the  Supreme  Power  in  the  nation,  —  the  people, 
as  a  collective  political  unit.  This  law,  thus  uttered  by  the 
people  in  their  sovereign  capacity,  is,  in  some  respects,  ad- 
dressed to  and  binding  upon  the  individual  members  of  the 
body  politic  ;  in  most  respects,  it  is  addressed  to  and  bind- 
ing upon  the  different  classes  of  officials  who  make  up  the 
government.  Now,  that  an  utterance  of  the  Supreme  Power 
may  have  a  compulsive  character,  that  it  may  truly  be  a 
law,  there  must  be  connected  with  it  some  sanction,  some 
means  of  insuring  obedience,  of  protecting  the  rights  and  en- 
forcing the  duties  which  it  creates.  Without  this  sanction,  it 
would  lose  all  the  elements  of  a  command,  and  become  a  mere 
request.  This  principle,  which  is  confessedly  true  of  ordinary 
legislation  directed  against  the  individual  members  of  society, 
is  no  less  true  of  the  organic  law  directed  against  the  govern- 

i  See  §  10. 


AUTHORITATIVE   INTERPRETATION.  81 

ment  itself.  A  sanction  must  be  connected  with  the  latter  as 
well  as  with  the  former.  The  great  difference  in  the  nature 
of  the  two  classes  of  laws,  in  the  persons  to  whom  they  are 
addressed,  and  in  the  acts  or  forbearances  which  they  enjoin, 
must,  of  course,  involve  a  corresponding  difference  in  the 
sanctions  appropriate  to  them.  As  the  Constitution  enjoins 
political  acts  and  forbearances,  the  means  for  enforcing  these 
commands  will  be,  in  a  great  measure,  political.  Since  official 
persons,  whether  their  functions  be  legislative,  administrative, 
or  judicial,  must,  from  the  very  nature  of  their  position,  be 
clothed  with  an  ample  discretion,  the  ordinary  punishments  of 
the  criminal  law  would  be  very  inappropriate  to  restrain  them 
within  their  prescribed  limits  of  action.  Should  the  transgres- 
sion, however,  be,  not  a  mere  mistake  in  the  exercise  of  dis- 
cretion, but  wilful,  intentional,  or  corrupt,  there  is  no  reason 
why  the  official  person  should  not  incur  and  suffer  the  same 
kind  of  penalties  that  are  inflicted  on  private  offenders.  But 
the  civil  society  which  has  constructed  a  government,  and 
carefully  defined  the  limits  of  the  political  powers  which  can 
be  exercised  thereby,  may  be  as  deeply  injured  by  the  honest 
misconceptions,  the  well-meant  transgressions  of  its  agents,  as 
by  their  wilful  and  corrupt  usurpations.  Some  remedy,  there- 
fore, must  be  provided  for  these  violations  of  the  organic  law, 
these  political  acts  which,  though  not  wilful,  are  unwarranted 
by  the  Constitution. 

There  are  three  kinds  or  classes  of  sanctions  which  may  be 
applied  to  the  persons  wdio  compose  the  government,  and  by 
which  a  due  observance  of  the  provisions  of  the  Constitution 
may  be  procured.  (1)  A  civil  officer  may  be  impeached  when 
his  transgression  is  wilful,  or  corrupt.  (2)  The  ordinary 
punishments  of  the  criminal  law  may  be  inflicted  when 
the  transgression  is  made  a  crime.  (3)  The  political  act 
which  is  beyond  the  limits  of  power  defined  in  the  Constitu- 
tion may  be  judicially  pronounced  a  nullity.  The  first  and 
second  of  these  sanctions  are  personal  penalties  inflicted  upon 
the  offender,  and  do  not  affect  the  nature  and  quality  of  the 
act  which  he  has  done ;  the  third  is  not  a  personal  punish- 
ment, it  is  not  directed  against  the  official,  but  attaches  to  the 
6 


82  INTERPRETATION   BY   THE   GOVERNMENT. 

act  which  he  has  done,  and  deprives  it  of  any  validity.  If  this 
act  is  in  the  form  of  a  statute,  it  is  void,  creating  no  rights 
and  duties  ;  if  in  the  form  of  an  administrative  measure,  its 
political  character  is  gone,  and  it  becomes  a  mere  private 
trespass. 

§  123.  To  apply  these  sanctions,  and  especially  the  third, 
the  Constitution  must  be  interpreted.  In  order  to  ascertain 
whether  any  political  measure  is  in  excess  of  the  powers  con- 
ferred upon  the  government,  the  number  and  extent  of  those 
powers  must  be  fixed  in  an  authoritative  manner.  Unless 
there  exists  some  means  of  determining  the  meaning  of  the 
organic  law,  and  thus  of  furnishing  a  criterion  which  may  be 
applied  to  the  acts  of  official  persons,  all  attempts  to  enforce 
that  law  and  restrain  its  violations  would  result  in  confusion. 
The  first  point  to  be  examined,  therefore,  is,  whether  the  Con- 
stitution can  be  authoritatively  construed  and  expounded,  and 
if  so,  by  whom  ? 

§  124.  This  question  must  be  divided,  and  its  complete 
answer  involves  two  others.  1.  Does  the  function  of  inter- 
preting and  construing,  in  a  final  and  authoritative  manner, 
reside  in  the  United  States  as  a  body  politic,  or  in  the  sepa- 
rate states  ?  And  2.  Does  it  reside  in  all  the  departments  of 
government,  or  in  some  one  of  them  ?  These  latter  inquiries 
are  entirely  distinct ;  neither  involves  the  other.  It  may  be 
conceded  that  the  authority  in  question  belongs  to  the  nation, 
to  the  exclusion  of  the  states  ;  but  it  does  not  necessarily  follow 
that  it  is  committed  to  any  particular  department  of  the  gov- 
ernment, or  that  it  is  shared  in  common  by  all. 

The  discussion  of  these  two  branches  of  the  general  subject, 
must,  therefore,  be  kept  distinct. 

§  125.  I.  Does  the  function  of  interpreting  and  construing 
the  Constitution  in  a  final  and  authoritative  manner,  reside  in 
the  United  States  as  one  body  politic,  or  in  the  separate  states  ? 
I  need  not  dwell  upon  this  portion  of  the  theme  in  any  extend- 
ed manner.  The  course  of  reasoning  which  has  been  thus  far 
followed  applies  here  with  equal  force  ;  and  the  conclusions 
that  were  reached  through  that  reasoning  are  a  definite  answer 
to  the  present  inquiry.     If  the  Constitution  of  these  United 


AUTHORITATIVE   INTERPRETATION.  33 

States  was  formed  by  one  self-existent  political  society,  by  the 
one  people  of  this  country,  in  virtue  of  their  inherent  attrib- 
utes of  sovereignty,  then  it  follows,  as  a  matter  of  course,  that 
the  capacity  to  interpret,  construe,  and  give  force  to  the  pro- 
visions of  that  organic  law,  must  exist  in  and  through  them  ; 
that  the  government  which  they  have  organized  and  set  up, 
must  have  sole  jurisdiction  to  pronounce  upon  the  extent  and 
character  of  the  powers  delegated  to  it  by  its  own  authors. 

§  126.  In  truth,  as  a  practical  fact  resulting  from  the  nature 
of  our  institutions,  the  people  themselves,  the  aggregate  of 
individuals  who  compose  the  body  politic,  are,  through  their 
electors,  the  final  arbiters  who  must  judge  of  the  acts  of  their 
national  rulers,  and  give  construction  to  the  instrument  which 
they  themselves  have  framed.  All  questions  both  of  power 
and  policy  must  finally  be  resolved  by  them.  In  the  course 
of  time  their  will  becomes  represented  in  all  departments  of 
the  government,  and  is  felt  in  all  proceedings  of  that  govern- 
ment. There  are  times,  indeed,  when  the  constituted  author- 
ities do  not  reflect  the  present  thought  and  wish  of  a  majority 
of  the  citizens ;  and  the  whole  scheme  was  so  contrived  with 
checks  and  balances,  that  the  governmental  action  should  be 
steady,  the  changes  gradual,  the  progress  uniform.  But  elec- 
tions are  so  frequent,  and  all  officers,  whether  elective  or  ap- 
pointed, so  completely  derive  power  from  their  constituents, 
that  in  the  long  run  the  deliberate  conviction  of  the  nation  is 
executed  by  their  agents.  However  much  we  may  theorize, 
this  is  a  fact  which  cannot  be  gainsaid  or  avoided.  It  is  a 
fact  which  gives  a  practical  and  complete  answer  to  the  claims 
of  state  sovereignty,  and  the  schemes  for  state  aggrandizement 
and  independence.  Our  whole  history  testifies  to  this  inherent 
capacity  of  the  people  to  interpret  their  own  organic  law. 

§  127.  But  while  the  people  are  thus  the  final  judges,  their 
decision  can  only  be  made  by  and  through  the  government 
which  they  have  ordained  and  established.  This  nation  is  not 
a  democracy,  and  the  constituted  order  of  things  must  be 
strictly  observed  in  all  political  acts.  The  government,  through 
some  or  all  of  its  departments,  although  it  draws  its  inspiration 
from  the  people,  is  the  sole  actor  in  giving  force  and  effect  to 


84  INTERPRETATION  BY  THE   GOVERNMENT. 

the  popular  will ;  it  is  the  proximate  interpreter  of  the  Con- 
stitution ;  it  practically  decides  as  to  the  extent  and  character 
of  the  powers  which  it  may  wield.  If  the  people  are  dissatis- 
fied with  the  judgment,  they  put  other  persons  in  the  place  of 
those  rulers  who  have  foiled  to  represent  the  nation's  wish ;  a 
new  policy  is  inaugurated,  and  the  error  is  thus  corrected.  In 
the  two  great  political  departments,  the  Legislative  and  the 
Executive,  this  change  can  be  speedily  made,  and  Congress 
and  President  readily  brought  into  accord  with  the  people. 
In  the  judicial  department  the  process  must  be  slower,  but  it 
is  none  the  less  finally  certain  ;  judges,  though  appointed  for 
life,  will,  at  last,  utter  the  opinion  of  the  nation  upon  questions 
of  constitutional  power.  The  courts  are  a  balance-wheel ;  they 
give  steadiness  to  the  progress  ;  they  equalize  the  development ; 
they  cannot  be  a  barrier  in  the  way  of  all  onward  movement. 

§  128.  To  these  general  propositions  all  schools  of  theorists 
assent,  except  the  ultra  partisans  of  complete  state  sovereignty 
and  independence.  Madison,  Jackson,  and  Taney,  are  as 
strong  and  pronounced  in  their  opinion  that  the  general  govern- 
ment possesses  the  sole  capacity  to  interpret  and  expound  the 
organic  law  finally  and  authoritatively,  and  that  whatever 
function  may  belong  to  the  states  is  subordinate  and  auxiliary, 
as  are  Hamilton,  Jay,  Marshall,  or  Story.  It  is  the  settled 
conviction  of  the  country ;  a  dogma  which  has  been  so  gener- 
ally accepted  that  it  has  passed  into  the  common  law  of  the 
land,  in  accordance  with  which  the  action  of  the  national  and 
state  governments  has  proceeded  with  few  interruptions. 
None  but  those  who  have»accepted  the  teachings  of  Mr.  Cal- 
houn as  the  true  exposition  of  our  civil  polity,  have  formally 
denied,  or  do  now  formally  deny,  this  proposition.  But,  as 
has  already  been  stated,  these  disorganizing  views  of  Calhoun 
and  his  disciples  have  never  been  controlling  in  any  depart- 
ment of  the  United  States  government,  nor  in  many  of  the 
separate  states. 

§  129.  It  is  true  that  there  have  been  a  few  exceptions  to 
the  almost  uniform  acquiescence  of  the  local  commonwealths' 
to  the  claim  of  the  United  States  to  this  branch  of  paramount 
sovereignty,  even  before  the  breaking  out  of  the  late  war.     A 


AUTHORITATIVE   INTERPRETATION.  85 

few  of  the  states,  at  an  early  period  of  our  history,  under  the 
influence  of  political  leaders  who  were  opposed  to  the  general 
government,  declared  their  opinion  by  formal  resolves,  that 
the  power  of  interpretation  and  construction  resided  alone  in 
themselves.  These  expressions  of  opinion,  however,  were 
mere  brutum  fulmen ;  they  were  generally  repudiated  at  the 
time  ;  they  led  to  no  practical  results ;  they  did  not  impede 
the  harmonious  working  of  our  institutions.1 

§  130.  In  a  very  few  instances,  prior  to  the  late  war,  cer- 
tain states,  by  some  one  or  by  all  of  the  departments  of  their 
governments,  formally  resisted  the  authority  of  the  nation  to 
decide  upon  its  own  powers.  The  three  most  notable  of  these 
attempts  will  be  mentioned.  One  was  the  Nullification  Ordi- 
nance of  South  Carolina,  which  I  pass  by  with  this  simple 
reference. 

Another  occurred  during  the  presidency  of  General  Jack- 
son. The  State  of  Georgia  had  passed  certain  laws  respecting 
the  Indian  tribes  within  her  territory,  forbidding,  among  other 
things,  any  communication  by  white  persons  with  such  Indians 
except  in  the  manner  authorized  by  those  statutes.  Two  mis- 
sionaries, deeming  this  legislation  to  be  in  contravention  to  the 
Constitution  of  the  United  States,  and  therefore  null  and  void, 
did  have  communication  with  the  Indians  in  the  prosecution  of 
their  calling  as  religious  teachers.  For  this  offence  they  were 
tried  by  Georgia  courts,  condemned  and  punished.  Attempt- 
ing to  bring  their  case  before  the  Supreme  Court  of  the  Unit- 
ed States  to  be  reviewed,  the  state  government  of  Georgia  at 
first  refused  to  recognize  the  jurisdiction  of  that  national  tri- 
bunal ;  and  after  the  Supreme  Court  had  heard  and  decided 
the  cause,  pronouncing  the  law  in  question  unconstitutional 
and  void,  and  the  imprisonment  of  the  parties  illegal,  the  state 
still  refused  to  be  bound  by  the  judgment,  and,  in  fact,  never 
did  yield  to  its  authority.2  * 

i  See  the  "Virginia  Resolutions  of  1798,"  and  the  answers  thereto 
V»f  Delaware,  Rhode  Island,  Massachusetts,  New  York,  Connecticut,  New 
Hampshire,  and  Vermont.     Elliot's  Debates,  Vol.  4,  pp.  528-539. 

See  also,  especially  the  "Kentucky  Resolutions  of  1798  and  1799."  — 
Ibid.  p.  540. 

2  Worcester  v.  The  State  of  Georgia,  6  Peters'  R.  515. 


86         INTERPRETATION  BY  THE  STATES. 

§  131.  The  last  instance  which  I  shall  notice  occurred  in 
our  own  times.  A  case  arose  in  Wisconsin  which  grew  out 
of  the  Fugitive  Slave  Law.  An  United  States  marshal  had 
been  engaged  in  arresting  a  person  claimed  as  a  fugitive  slave, 
and  was  brought  before  the  state  courts  in  a  proceeding 
wherein  he  relied  upon  the  statute  of  Congress  as  his  justifi- 
cation. The  Supreme  Court  of  Wisconsin  decided  that  the 
act  called  the  Fugitive  Slave  Law  was  unconstitutional  and 
void.  An  attempt  having  been  made  to  carry  the  case  to  the 
national  court  for  l'eview,  the  judicial  authorities  of  Wisconsin 
held  that  their  own  action  was  final,  and  refused  to  obey  the 
mandate  from  Washington.1 

§  182.  Whatever  opinion  we  may  have  in  regard  to  the 
policy  of  Georgia's  treatment  of  her  Indian  tribes,  and  of  the 
expediency,  morality,  or  even  validity  of  the  Fugitive  Slave 
Law,  we  must  insist  that  both  these  states  acted  in  a  revolu- 
tionary manner.  If  they  were  right,  our  whole  political 
fabric  has  no  coherence  ;  is  nothing  more  than  a  heap  of  sand, 
to  be  disintegrated  by  the  slightest  force  that  can  separate  the 
component  particles.  But  these  instances  are  exceptions  only, 
never  in  future,  let  us  hope,  to  be  followed. 

§  133.  While  the  doctrine  is  insisted  on  with  the  utmost 
emphasis,  that  the  capacity  to  interpret  and  construe  the  Con- 
stitution in  a  final  and  authoritative  manner  belongs  alone  to 
the  nation,  to  be  exercised  through  its  imperial  government, 
it  is  not  contended  that  the  several  states  do  not  possess  the 
same  function  in  a  subordinate  and  auxiliary  manner.  In  fact, 
it  is  absolutely  necessary  that  each  commonwealth  should,  in 
many  instances,  primarily  give  a  construction  to  the  national 
organic  law.  This  may  be  done  either  implicitly  by  their 
legislature  in  enacting,  and  by  their  governor  in  executing,  a 
statute,  or  expressly  and  formally  by  their  judiciary  in  passing 
upon  the  validity  of  such  statute.'  For  the  Constitution,  in 
many  particulars,  speaks  directly  to  the  states  as  political  soci- 
eties, limiting  their  legislative  powers,  and  restraining  them 
from  adopting  certain  classes  of  laws.  The  question  whether 
a  proposed  statute  is  forbidden  by  the  Constitution  must  then, 
1  Ablemann  v.  Booth,  21  Howard's  R.  506. 


AUTHORITATIVE   INTERPRETATION.  87 

in  the  first  instance,  be  presented  to  the  state  legislatui'e  ;  the 
question  as  to  its  validity  when  passed,  may,  in  the  first 
instance,  be  presented  to  the  state  courts.  While  the  function 
of  interpreting  the  organic  law  of  the  United  States  belongs, 
therefore,  to  the  states,  its  exercise  by  them  lacks  the  element 
of  finality,  of  conclusive  authority ;  their  determinations  may 
be  reviewed,  disregarded,  and  reversed  by  the  general  govern- 
ment. 

§  134.  II.  Does  this  power  reside  in  all  departments  of 
the  national  government,  or  in  some  one  of  them  ? 

Although  it  has  thus  been  settled  as  a  part  of  our  civil  pol- 
ity, that  the  United  States  possesses  the  sovereign  attribute  of 
giving  effect  to  its  own  Constitution,  there  has  been  more  con- 
flict of  opinion  in  times  past  —  and  that  conflict  still  exists  to 
some  extent  among  theorists  —  in  respect  to  the  question, 
what  department  of  the  general  government  is  the  final  depos- 
itary of  this  power  to  interpret  and  expound  the  organic  law, 
and  to  define  the  extent  and  character  of  the  functions  com- 
mitted by  the  people  to  their  national  rulers,  and  to  the  sev- 
eral states.  It  has  been  urged  by  some  that  each  department 
—  the  Executive,  the  Legislative,  and  the  Judicial,  —  is,  in  this 
respect,  entirely  independent  of  the  others;  that  each  must 
decide,  in  regard  to  its  own  powers,  for  and  by  itself,  and  is 
not  in  the  least  controlled  by  the  decisions  and  judgments  of 
the  others  upon  the  same  questions. 

It  has  been  held  by  others,  that  the  Judicial  Department, 
the  Supreme  Court,  is,  from  the  very  nature  of  its  offi- 
cial powers  and  capacities,  the  final  arbiter ;  and  that  its 
decisions  are  binding,  not  only  upon  the  parties  to  suits  liti- 
gated before  it,  but  upon  the  several  states,  and  upon  the 
Executive  and  Congress. 

§  135.  This  latter  opinion  has  practically  been  adopted  and 
acted  upon  by  the  government  and  the  people  from  the  com- 
mencement of  our  present  organization.  In  the  great  majority 
of  instances,  Presidents  and  Congresses,  as  well  as  states,  have 
yielded  to  the  expositions  of  law  as  uttered  by  the  national 
judiciary.  So  constant  has  been  this  practice,  that  it  forms 
the  rule ;  any  deviations  from  it  have  been  exceptional,  rather 


68     INTERPRETATION  BY  THE  SUPREME  COURT. 

the  results  of  individual  opinion,  than  of  any  settled  and  defi- 
nite policy. 

I  might  rest  my  preference  for  the  doctrine  that  the  national 
Judiciary  alone  is  clothed  with  the  high  power  which  it  has 
exercised,  upon  this  general  assent ;  but  the  correctness  of  that 
position  can  be  established  by  considerations  drawn  from  the 
Constitution,  and  from  the  nature  of  our  government,  which 
seem  to  be  absolutely  irresistible. 

§  186.  Mr.  Jefferson  announced  the  principle  that  each  de- 
partment of  the  government  was  the  sole  judge  of  the  extent 
and  character  of  its  powers  under  the  Constitution, —  or,  in 
other  words,  was  an  independent  interpreter  of  that  instrument. 
In  his  private  and  public  political  writings  he  advocated  this 
view  with  great  earnestness,  and  acted  upon  it,  in  some  in- 
stances, while  President.  After  him,  President  Jackson  re- 
iterated the  same  dogma,  brought  it  into  bold  relief,  and  based 
much  of  his  official  action  upon  it.  I  cannot  but  believe  that 
the  opinion  adopted  by  these  eminent  men  was  in  very  great 
measure  the  result  of  personal  qualities  and  temperament. 
The  whole  course  of  Mr.  Jefferson's  public  life,  and  especially 
his  private  correspondence,  show  that  he  was  bitterly  hostile  to 
the  national  judiciary  from  the  very  commencement  of  our 
Union.  He  was  decidedly  in  favor  of  a  form  of  government 
more  democratic  than  ours,  and  looked  upon  the  checks  and 
balances  contrived  to  restrain  the  action  of  the  more  imme- 
diate representatives  of  the  people,  with  no  favor.  Mr  Jack- 
son possessed  an  iron  will  and  determination,  and  was  unable 
to  yield  his  own  opinions  to  those  of  another.  In  our  own 
times  the  dogma  under  consideration  has  been  asserted  by  some 
public  men  and  political  writers  who  are  warm  partisans  of 
the  intrinsic  and  absolute  nationality  and  sovereignty  of  the 
United  States.  Most  of  these  gentlemen,  however,  belong  to 
a  school  which  is  disposed  to  unduly  exalt  the  Congress  above 
the  other  coordinate  departments  of  the  government.  None 
of  these  theorists  would  probably  admit  that  the  President 
had  an  independent  and  equal  capacity  with  Congress  to  inter- 
pret the  Constitution  and  to  judge  of  the  validity  of  a  statute 
This  modern  school  —  for  the  ideas  they  represent  are  new 


AUTHORITATIVE   INTERPRETATION.  89 

in  this  country,  —  would  raise  the  Congress  to  a  position  equal 
in  power  to  that  of  the  British  Parliament,  would  reduce  the 
Executive  to  the  political  level  of  the  British  Crown,  and 
entirely  destroy  the  Judiciary  as  a  coordinate  department  of 
the  government.  It  seems  to  be  plain,  to  be,  indeed,  self- 
evident,  that,  if  the  conclusions  reached  by  Jefferson  and  Jack- 
son should  be  adopted  as  practical  guides  in  the  administration 
of  public  affairs,  our  whole  organization  would  at  once  fall  in 
pieces ;  but  that  if  the  later  notions  as  to  the  sole  authority  of 
Congress  should  be  accepted,  the  government  would  rapidly 
change  into  an  irresponsible  tyranny,  for  the  legislature  would 
not  be  restrained  by  those  deep  rooted  and  ancient  social  and 
traditionary  sentiments  which  are  so  strong  a  conserving  power 
in  Great  Britain. 

§  137.  The  national  government  is  composed  of  three  sep- 
arate departments,  to  each  of  which  is  confided  a  distinct  class 
of  functions  and  duties.  Yet  it  is  not  in  accordance  with  the 
truth  to  say  that  each  is  independent  of  the  others.  Each  is 
so  completely  dependent  on  the  others  that  without  them  it 
could  practically  do  nothing.  Congress  is  to  pass  laws,  but 
not  to  execute  or  expound  them.  It  is  the  province  of  the 
President  to  execute,  but  he  cannot  make.  The  Judiciary 
must  expound,  and  apply  to  particular  individual  suitors,  but 
can  neither  make  nor  execute.  Each  is  therefore  a  comple- 
ment of  the  others.  Of  these  three  classes  of  functions,  that 
possessed  by  the  Congress  is  undoubtedly  by  far  the  most 
important  and  efficient,  affecting  more  immediately  the  inter- 
ests of  the  people.  That  body  holds  the  initiative  in  almost 
all  public  affairs ;  the  President  cannot  execute,  nor  the  Judi- 
ciary expound,  a  law  until  Congress  has  acted.  The  legisla- 
ture must,  therefore,  in  the  very  exercise  of  the  capacities 
bestowed  upon  them,  expressly  or  tacitly  pass  upon  the  mean- 
ing of  the  Constitution,  and  the  extent  of  the  powers  they  may 
wield.  Their  decision  must  be  regarded  as  primd  facie  cor- 
rect, and  must  stand  and  be  enforced  by  the  Executive  until 
the  Judiciary  shall  have  pronounced  it  wrong,  and  the  statute 
a  nullity.  The  independent  power  of  the  President  would 
teem  to  be  limited  to  the  exercise  of  his  veto,  by  which  he 


90     INTERPRETATION  BY  THE  SUPREME  COURT. 

may  call  the  Congress  to  a  second  examination  of  the  propose  1 
measure,  and  require  the  unusual  majority  of  two  thirds  to 
give  it  a  compulsive  character. 

§  138.  What  ruinous,  destructive  consequences  would  im« 
mediately  result,  if  it  should  be  practically  admitted  that  the 
several  departments  might  independently  judge  and  decide  as 
to  the  extent  and  character  of  the  powers  conferred  by  the 
Constitution  !  The  collisions  would  as  readily  and  as  often 
arise  between  the  Executive  and  the  legislature  as  between 
either  and  the  Judiciary.  To  illustrate  :  Congress  passes  a 
statute,  which  the  President,  deeming  unconstitutional,  vetoes. 
It  is  passed  again,  notwithstanding  his  objections,  and  thus  be- 
comes a  law.  The  duty  devolves  upon  the  President  to  exe- 
cute this  law  ;  but  he,  still  regarding  it  as  contrary  to  the  pro- 
visions of  the  Constitution,  and  judging  thereof  independently, 
refuses  to  carry  it  into  operation,  although  perhaps  the  courts 
may  have  pronounced  it  valid,  and  have  adjudicated  upon 
rights  created  by  it ;  the  law  is  thus  made  a  dead  letter.  How 
often  must  such  circumstances  arise  to  render  the  government 
an  object  of  contempt,  rather  than  of  veneration  and  love  ? 
■  §  139.  Again  :  Congress  passes  a  statute  which  is  approved 
by  the  Executive.  Certain  individuals,  affected  thereby,  bring 
their  case  before  the  Supreme  Court  for  examination.  The 
law  is  decided  by  that  tribunal  to  be  null  and  void.  This 
decision  is  admitted  by  all  theorists  to  be  binding  upon  the 
immediate  parties  to  the  suit  in  which  it  is  rendered,  so  that 
they  are  released  from  the  obligations  of  the  law.  If  it  be 
not  also  binding  upon  the  government,  we  then  have  the  as- 
tounding anomaly  of  Congress  and  the  President  insisting 
upon  the  validity  of  a  statute  which  is  obligatory  upon  those 
persons  alone  who  may  choose  to  assent  to  it ;  while  all  persons 
who  refuse  that  assent,  and  bring  theii  cases  before  the  su- 
preme tribunal,  will  be  relieved  from  the  duty  of  obedience, 
[n  other  words,  this  law  would  be  entirely  deprived  of  all 
sanction ;  it  would  become  a  mere  request ;  no  obedience 
could  be  enforced  ;  every  recognition  of  its  authority  would 
be  voluntary ;  the  distinctive  and  essential  element  which  con* 
stitutes  law  would  be  utterly  lost. 


AUTHORITATIVE   INTERPRETATION.  91 

§  140.  Such  cannot  be  the  true  meaning  of  the  Constitu- 
tion. Our  fathers  never  prepared  for  us  such  a  mockery  of 
government.  No  one  but  an  impracticable  theorist  or  a  head- 
strong dogmatist  would  ever  have  thus  read  and  understood 
the  organic  law.  The  calm  good  sense  of  the  people  has  led 
them  to  the  true  doctrine,  and  in  that  they  rest  content,  and 
in  that  their  rulers  must  also  continue. 

§  141.  There  must,  therefore,  be  some  judge,  some  single 
umpire,  to  whose  arbitrament  the  government  as  well  as  the 
citizen  are  subject. 

The  very  nature  of  the  whole  Constitution  as  a  written 
grant  of  certain  limited  powers,  as  well  as  definite  provisions 
of  that  instrument,  show  that  this  umpire  can  only  be  the 
Judiciary.  The  American  Constitution  is  not,  like  that  of 
Great  Britain,  traditional  and  elastic,  consisting  only  in  the 
acts  and  precedents  of  Parliament,  which  that  legislature  may 
either  follow  or  avoid.  It  is  a  fundamental  statute  of  the 
whole  people,  passed  by  them  in  their  organic  capacity,  bind- 
ing upon  themselves  and  upon  all  the  agents  which  they  have 
set  up  and  clothed  with  limited  functions.  Beyond  this  stat- 
ute neither  Congress  nor  President  can  lawfully  go ;  going 
beyond,  their  acts  are  nullities  and  not  laws.  This  is  a  posi- 
tion universally  conceded. 

§  142.  Now,  it  is  a  part  of  the  essential  province  of  the 
Judiciary,  exercised  without  question  not  only  by  the  courts 
rf  Great  Britain  and  of  the  United  States,  but  by  those  of 
every  country  possessing  a  systematic  jurisprudence,  to  ex- 
plain, expound,  construe,  and  interpret  statutes.  It  is  their 
duty  to  determine  what  rights  and  obligations  arise  from  these 
written  declarations  of  legislative  will ;  to  declare  upon  whom 
and  to  what  extent  they  confer  rights,  and  upon  whom  and  to 
what  extent  they  lay  obligations.  It  is  a  part  of  the  same 
function  which  empowers  the  courts  of  tnis  country  to  adjudi- 
cate upon  the  written  constitutions  of  the  nation  and  of  the 
states.  It  is  true  that  the  jurisdiction  is  more  momentous, 
more  fraught  with  consequences  for  good  or  evil,  demanding 
more  ability,  learning,  and  integrity,  than  the  mere  interpre- 
tation of  ordinary  statutes  j  but  only  so  because  the  parties  to 


92  INTERPRETATION   BY   THE   SUPREME    COURT. 

be  affected  are  not  simply  private  individuals,  but  organized 
governments ;  the  rights  and  obligations  to  be  ascertained  and 
enforced  are  not  those  which  belong  to  or  rest  upon  separate 
citizens,  but  those  which  belong  to  and  rest  upon  the  consti- 
tuted rulers.  There  is  no  difference  here  in  kind,  but  in 
degree. 

§  143.  It  is  true  that  the  courts  of  Great  Britain  do  not 
possess  this  high  attribute,  but  only  because  there  is  no  written 
British  constitution  superior  to  Parliament.  The  powers  of 
that  legislature  are  not  limited  ;  the  constitution  is,  in  etl'eet, 
what  Parliament  may  at  any  time  pronounce  it  to  be.  It  is 
not  possible,  therefore,  that  a  question  should  arise  whether, 
in  the  passage  of  any  statute,  Parliament  has  exceeded  its 
powers.  In  our  civil  polity,  this  jurisdiction  of  the  Supreme 
Court  plainly  results  from  the  very  nature  of  our  organic  law 
as  a  fixed  written  statement  and  enumeration  of  certain  rights 
and  powers  conferred  upon  the  general  government ;  from  the 
fact,  in  short,  that  it  is  a  fundamental  statute,  which  must 
be  expounded  and  interpreted  by  the  Judiciary  in  the  same 
manner  and  for  the  same  reasons  as  any  other  enacted  law. 

§  144.  But  we  may  go  beyond  the  general  nature  of  the 
whole  instrument,  and  refer  the  power  of  the  Supreme  Court 
as  final  arbiter  to  express  provisions  of  the  Constitution  which 
recognize  or  create  such  a  function.  Article  VI.,  Section  3, 
declares  that  "  this  Constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof,  .  .  .  shall 
be  the  supreme  law  of  the  land."  It  was  shown  in  a  former 
chapter1  that  the  term  "laws  of  the  United  States,"  in  this 
section,  is  not  confined  to  statutes  of  Congress,  but  includes 
every  thing  which  has  the  binding  efficacy  of  law,  the  un- 
written or  judicial  as  well  as  the  written  or  enacted ;  and 
therefore  embraces  the  decisions  of  United  States  courts  upon 
subjects  which  are  specially,  exclusively,  or  finally  committed 
to  their  jurisdiction. 

In  respect  to  some  matters,  the  national  Judiciary  has  an 
exclusive,  or  at  least  a  final,  jurisdiction  growing  out  of  the 
rery  character  itself  of  the   subjects  adjudicated  upon.     In 

1  See  §  99. 


AUTHORITATIVE   INTERPRETATION.  93 

respect  to  other  matters,  the  same  courts  have  a  jurisdiction 
neither  exclusive  nor  final,  but  concurrent  with  that  of  the 
state  tribunals,  resulting  not  from  the  character  of  the  subject 
adjudicated  upon,  but  from  the  situation  of  the  parties  to  suits 
brought  before  them.  Of  the  first  class  are  questions  in  re- 
gard to  admiralty,  to  ambassadors,  and  many  others  ;  of  the 
latter  class,  are  questions  touching  ordinary  private  rights  of 
ownership,  of  contract,  and  the  like,  when  the  parties  are  citi- 
zens of  different  states.  Now,  the  decisions  of  the  national 
Supreme  Court  involving  subjects  of  the  former  class  are  "  the 
supreme  law  of  the  land ;  "  and,  in  rendering  its  judgments, 
that  tribunal  is  always  guided  by  its  own  convictions  of  what 
the  law  of  the  United  States  is  or  ought  to  be.  On  the  other 
hand,  its  decisions  involving  subjects  of  the  second  class  are 
not  the  supreme  law  of  the  whole  land,  but  expositions  of  the 
local  law  of  the  particular  state  in  which  the  conti'oversy  arose, 
and,  in  rendering  them,  the  court  always  assumes  to  follow 
that  law.  Thus,  in  a  suit  between  parties  residing  the  one  in 
Ohio  and  the  other  in  New  York,  concerning  lands  in  the  lat- 
ter state,  the  court  would  adopt  and  enforce  the  rules  already 
settled  by  the  legislature  and  the  judiciary  of  New  York. 

§  145.  Article  III.,  Section  2,  declares  that  "  the  judicial 
power  of  the  United  States  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  Constitution  and  the  laws  of  the 
United  States."  Cases  of  this  kind  which  arise  under  the 
Constitution  clearly  belong  to  the  first  of  the  above-named 
classes.  The  considerations  referred  to  in  the  former  portion 
of  this  chapter  apply  here  with  peculiar  emphasis.  Over 
*hese  cases  the  national  tribunal  has  final  control.  However 
much  the  state  courts  may  primarily  adjudicate  upon  the  same 
questions,  their  conclusions  may  be  reviewed  and  set  aside  by 
the  Supreme  Court  of  the  United  States.  Its  judgments, 
therefore,  giving  construction  and  interpretation  to  the  Consti- 
tution, are  "  laws  of  the  United  States  made  in  pursuance  of 
the  Constitution,"  and,  as  such,  are  the  "  supreme  law  of  the 
land ;  "  and,  if  thus  paramount,  they  must  control  the  Execu- 
tive and  the  Congress  as  well  as  private  citizens. 

§  146.  It  might  be  urged  that,  if  the  national  Judiciary  are 


91     INTERPRETATION  BY  THE  SUPREME  COURT. 

to  be  entrusted  with  the  capacity  to  decide  in  a  final  and  au- 
thoritative  manner  upon  the  meaning  of  the  Constitution,  and 
the  powers  thereunder  which  may  be  wielded  by  the  govern- 
ment and  by  the  states,  their  interpretation  would  be  fixed, 
unchangeable,  unyielding  to  the  demands  of  the  people's  pro- 
gressive development ;  that  the  judicial  habit  of  mind  is  such, 
so  affected  and  guided  by  precedent  and  by  technical  methods, 
as  to  unfit  them  for  the  duty  of  giving  construction  to  an  in- 
strument entirely  political.  There  is  no  truth  in  this  objec- 
tion. The  courts  do  yield  to  the  pressure  of  the  popular  will, 
do  move  with  the  popular  progress,  slower  perhaps  than  legis- 
latures and  Presidents,  but  as  certainly  and  as  efficiently.  Iiv 
truth,  the  independent  judiciary  in  England  and  the  United 
States  have  been  the  most  important  instruments  in  developing 
the  private  law  so  as  to  keep  it  commensurate  with  the  wants 
of  an  advancing  society.  Old  political  precedents  may  be  as 
easily  disregarded  as  those  which  affect  the  personal  rights  and 
duties  of  the  citizen.  But  it  is  true  that  the  movement  of  the 
Judiciary  will  be  generally  more  slow  and  uniform  than  that 
of  legislatures  and  executives.  This  fact,  instead  of  being  an 
objection,  is  a  consideration  of  great  weight  in  favor  of  giving 
to  the  national  Supreme  Court  the  function  of  interpreting  the 
Constitution.  That  instrument,  as  the  organic  law  of  the 
whole  people,  is  the  source  of  all  other  legislation.  Its  mean- 
ing should  be  measurably  fixed  and  certain.  Congress  may 
readily  and  frequently  change  its  policy  ;  its  work  may  be  done 
under  the  influence  of  a  momentary  pressure ;  it  may  commit 
mistakes  which  require  speedy  amendment ;  and  the  conse- 
quences, though  evil,  are  transitory  ;  they  do  not  reach  to  the 
very  foundation  of  the  political  structure.  But  rapid  and 
sudden  alterations  in  the  construction  of  the  organic  law,  as- 
sumptions of  powers  one  day  which  are  denied  the  next,  affect 
the  entire  body-politic ;  they  place  every  citizen  in  a  state  of 
constant  uncertainty  as  to  his  rights  and  duties ;  they  produce 
a  condition  of  partial  anarchy.  England  has  its  traditions,  its 
social  classes,  its  reverence  for  the  past,  to  give  steadiness  to 
political  progress.  We  have  rejected  these  as  inconsistent 
with,  our  republican  institutions.     If  we  also  reject  the  Judi 


AUTHORITATIVE  INTERPRETATION.         95 

eiary  as  a  controlling  element  in  our  civil  polity,  we  shall  be 
left  without  any  thing  to  give  stability  to  the  administration 
of  affairs,  to  render  the  growth  which  all  desire,  healthy  and 
permanent,  the  progress  continuous  and  sure. 

§  147.  But  it  is  sometimes  objected  with  more  plausibility, 
that  to  concede  the  attribute  of  finally  and  authoritatively  in- 
terpreting the  Constitution  to  the  Supreme  Court,  would  be  to 
exalt  the  Judiciary  above  both  the  other  departments,  to  make 
it,  practically,  the  only  law-giving  power.  This  objection,  is, 
however,  based  upon  an  entire  misconception.  The  function 
of  the  court  is  essentially  a  secondary  one,  inferior  in  every 
respect  to  that  belonging  to  Congress.  It  cannot  move  until 
the  legislature  has  acted.  It  cannot  pronounce  beforehand 
upon  the  validity  of  a  proposed  measure.  It  cannot  proceed 
directly  against  the  other  departments.  It  must  wait  until  a 
"  case  "  be  brought  before  it  by  litigant  parties,  and  as  such 
case  may  involve  a  construction  of  the  Constitution,  the  rights 
and  duties  of  these  parties  cannot  be  ascertained  and  declared 
without  passing  upon  the  meaning  of  the  fundamental  law. 
Important,  therefore,  as  is  the  function  in  question,  it  is  in- 
trinsically subordinate  to  those  of  the  legislature  and  the  Exec- 
utive. It  should  be  remembered,  also,  that  the  Supreme 
Court,  as  a  distinct  and  co-ordinate  department,  was  created, 
and  the  judicial  powers  which  it  may  exercise,  were  conferred, 
by  the  same  sovereignty  that  created  the  legislature  and  the 
Executive,  and  endowed  them  respectively  with  their  political 
capacities.  The  people  could  ordain  and  establish  such  agents 
as  they  pleased,  and  distribute  functions  in  the  manner  which 
seemed  to  them  best.  Each  department  rests  upon  the  same 
foundation ;  each  wields  an  authority  granted  by  the  same 
giver ;  and  the  action  of  each  within  its  appointed  sphere  can- 
not be  regarded  as  an  infringement  upon  the  prerogatives  of 
the  others. 

§  148.  I  have  purposely  thus  far  refrained  from  citing  any 
judicial  authorities  in  support  of  the  position  that  the  national 
Judiciary  is  the  final  arbiter  as  to  the  meaning  of  the  Consti- 
tution. In  fact,  the  whole  history  of  the  Supreme  Court  is  an 
authority.     Every  case  involving  a  construction  of  the  Con- 


96  INTERPRETATION  BY  THE  SUPREME  COURT. 

stitution,   and   a  judgment  as  to  the  validity  of  a  statute  of 

Congress  or  of  a  state  legislature,  or  act  of  an  executive 
officer,  is  an  implied  assumption  of  the  power  under  discus- 
sion. In  several  important  and  leading  cases,  the  question 
was  raised  and  examined  by  the  Supreme  Court  of  the  United 
States  with  a  cogency  of  argument  which  never  has  been, 
and  never  can  be,  answered.  It  is  sufficient  to  refer  to  the 
very  early  case  of  Vanhorne's  Lessee  v.  Dorrance,1  and  to  the 
cases  of  Martin  v.  Hunter's  Lessee,2  and  Cohens  v.  The  State 
of  Virginia,3  for  the  opinions  of  Chief  Justice  Marshall  and  of 
Mr.  Justice  Stoiy,  and  to  the  recent  case  of  Ablemann  v. 
Booth,4  for  the  judgment  of  Chief  Justice  Taney.  These  cases 
should  be  diligently  and  carefully  studied,  not  only  by  all 
gentlemen  preparing  for  the  legal  profession,  but  by  all  who 
are  preparing  for  the  higher  duties  of  active  American  citizen- 
ship, both  as  models  of  juridical  learning  and  ability,  and  as 
statements  of  the  principles  upon  which  our  whole  political 
system  is  based.  If  any  matter  can  be  put  at  rest  by  an  un- 
varied course  of  judicial  decision,  and  by  an  almost  constant 
assent  of  the  Executive  and  the  legislature,  and  by  an  acquies- 
cence and  approval  of  the  people,  the  truth  that  the  national 
courts  are  the  final  judges  of  the  meaning  of  the  Constitution, 
and  the  extent  and  character  of  the  powers  conferred  upon  the 
United  States  government  and  upon  the  several  states,  may 
be  considered  as  established. 

§  149.  It  was  stated  in  §  122  that  there  are  three  classes  of 
sanctions  applicable  to  official  persons  by  which  the  observance 
of  the  organic  law  may  be  assured.  It  remains  to  describe,  in 
a  brief  manner,  the  method  of  applying  these  coercive  means. 
Two  of  these  sanctions  are  personal  in  their  nature,  applied 
directly  to  the  offender.  The  first  is  impeachment,  which 
may  be  prosecuted  against  the  President,  Vice-President,  and 
all  civil  officers  of  the  United  States  for  treason,  bribery,  or 
other  high  crimes  and  misdemeanors.5  The  whole  subject  of 
impeachment  will  be  examined  at  large  in  a  subsequent  chap» 

i  2  Dallas'  R.  304.  2  1  Wheaton's  R.  304. 

3  6  Wheaton's  R.  264.  4  21  Howard's  R.  506. 

8  Const.  Art.  II.  Sec.  4. 


AUTHORITATIVE   INTERPRETATION.  97 

ter.  It  is  sufficient  now  to  say  that  the  House  of  Represen- 
tatives has  the  sole  power  of  inaugurating  the  proceeding,1  and 
the  Senate  are  the  sole  judges  for  trying  the  accusation.2  It 
is  generally  conceded  that  impeachment  is  a  sanction  applicable 
not  only  to  acts  which  are  made  crimes  by  the  law,  but  also  to 
political  acts  which  are  wilful,  intentional,  and  corrupt,  and  of 
course,  to  intentional  violations  of  the  Constitution  by  a  civil 
officer. 

But  the  law  regards  many  wilful  and  corrupt  political  acts 
done  by  official  persons  as  positive  crimes  ;  and  for  these  the 
offender  is  liable  to  be  indicted,  tried,  convicted,  and  punished 
according  to  the  ordinary  course  of  administering  the  criminal 
law.  This  subject,  however,  hardly  falls  within  the  scope  of 
constitutional  law,  and  will  be  passed  by  without  further  com- 
ment. 

§  150.  By  far  the  most  important  means  for  assuring  the 
observance  of  the  fundamental  law,  is  the  power  residing  in 
the  courts  to  declare  a  statute  of  Congress  or  of  the  state  legiS- 
latures  void,  and  an  executive  act  unauthorized,  when  in  con- 
travention to  the  provisions  of  the  Constitution.  The  other 
sanctions  punish  the  offender,  this  relieves  the  citizen  ;  the 
others  do  not  affect  the  wrongful  measure,  this  takes  away  its 
power  to  injure  ;  the  others  look  chiefly  to  the  guilt  of  the 
official  agent,  this  to  the  rights  of  the  people.  Assuming  that 
the  Supreme  Court  of  the  United  States  is  the  final  depositary 
of  this  power,  we  are  to  inquire  how  that  tribunal  is  to  proceed 
in  the  exercise  of  its  most  important  attribute.  The  Constitu- 
tion which  creates  the  Supreme  Court,  defines  its  jurisdiction. 
The  exercise  of  this  jurisdiction  is  confined  to  "  cases  "  and 
"  controversies."  3  "  Cases  "  and  "  controversies  "  plainly  re- 
fer to  the  same  thing,  and  are  general  words  to  describe  the 
ordinary  proceedings  by  which  the  contentions  of  litigant  par- 
ties are  brought  before  a  judicial  tribunal  for  decision.  A 
"  case  "  or  "  controversy  "  involves  the  idea  of  a  party  pros- 
ecuting in  a  court  to  establish  or  maintain  some  right  or  enforce 
some  duty  against  another  party.     The  Supreme  Court,  there- 

1  Const.  Art.  I.  Sec.  2,  §  5.  2  Const.  Art.  I.  Sec.  3,  §  6 

3  Const.  Art.  III.  Sec.  2,  §  1. 
1 


98  INTERPRETATION   BY   THE   SUPREME    COURT. 

fore,  can  only  exert  its  function  of  interpreting  the  Constitu- 
tion, by  heaving  and  determining  some  case  or  controversy 
brought  before  it.  The  adjudication  upon  the  rights  and 
duties  of  the  parties  is  the  principal  thing,  the  construction  of 
the  Constitution  is  incidental.  The  Supreme  Court  cannot, 
under  the  form  ot  a  case  brought  before  it,  interfere  with  the 
political  functions  of  the  President  or  of  Congress.  Thus  an 
injunction  could  not  be  issued  to  restrain  the  President  from 
enforcing  a  statute  on  the  ground  that  it  was  contrary  to  the 
Constitution  and  void  ;  a  suit  demanding  such  relief  against 
the  Executive  would  not  even  be  entertained.  The  same 
would  be  true  of  any  attempt  to  restrain  Congress  as  a  body, 
or  individual  members  of  the  legislature,  from  passing  a  pro- 
posed measure.  This  point  was  expressly  decided  in  the  recent 
extraordinary  case  of  the  State  of  Mississippi  v.  Andrew  John- 
son, to  which  a  more  extended  reference  will  be  made  in  a 
subsequent  chapter. 

Thus  the  duties  of  the  Congress,  the  President,  and  the 
Supreme  Judiciary  are  kept  distinct ;  the  work  allotted  to 
each  is  left  in  its  own  hands  ;  it  is  only  the  results  of  that 
action,  the  juridical  rights  and  duties  created  by  it,  which  can 
give  rise  to  an  opportunity  for  the  Supreme  Court  to  examine 
the  work  itself  and  pronounce  upon  its  validity. 


PART    THIRD. 

WHAT  POWERS,  CAPACITIES,  AND  DUTIES  ARE  CONFERRED  OR 
IMPOSED  UPON  THE  NATIONAL  GOVERNMENT,  AND  WHAT  ARE 
CONFERRED   OR  IMPOSED  UPON   THE  SEVERAL   STATES. 


CHAPTER   I. 

THE    LEADING    IDEAS    OF     CIVIL     POLITY    WHICH     ENTER    INTO 
THE    ORGANIZATION    OF    THE    UNITED    STATES. 

§  151.  I  now  pass  to  the  third  grand  division  of  the  subject, 
which  is  the  one  of  most  practical  importance,  and  in  respect 
to  which  the  most  minuteness  of  detail  and  illustration  is 
needed :  What  are  the  powers  and  capacities  of  the  govern- 
ment of  the  United  States  ? 

In  treating  of  this  theme  I  shall  proceed  in  the  following 
order  :  — 

First.  To  develop,  in  a  brief  manner,  the  leading  ideas  of 
civil  polity  which  are  involved  in  the  whole  complex  system 
of  political  organization  ; 

Secondly.  To  describe  the  external  form  of  the  government, 
and  the  methods  by  which  the  machinery  is  kept  in  motion  ; 
and 

Thirdly.  To  state  and  discuss  the  powers  and  functions  of 
the  Legislative,  the  Executive,  and  the  Judicial  Departments 
separately. 

§  152.  What  are  the  leading  ideas  of  civil  polity  involved 
in  the  complex  system  of  political  organization,  which  the 
people  of  the  United  States  has  contrived? 

Thus  far  our  thoughts  have  been  constantly  directed  to  the 
nationality  of  the  one  people  of  the  United  States,  and  to  the 


100    CENTRALIZATION   AND   LOCAL   SELF-GOVERNMENT. 

capacities  which  inhere  in  them  by  virtue  of  that  nationality. 
I  have  purposely  refrained  from  speaking  with  any  emphasis 
and  at  any  length  of  the  limitations  which  the  people  has 
placed  upon  its  rulers.  The  division  of  powers  and  the  rights 
of  the  separate  states  under  the  Constitution  have  been  de- 
signedly kept  out  of  view.  The  phrase,  "  rights  of  the  states," 
is  used  advisedly.  The  quality  of  sovereignty  is  denied  to 
these  local  communities  ;  the  term  "  sovereign  states,"  I  deem 
to  be  illogical,  absurd,  opposed  to  the  truth  of  history.  But, 
still,  the  states  have  rights  as  perfect  within  their  sphere,  in 
the  present  condition  of  our  organic  law,  as  those  of  the  gen- 
eral government.  Their  only  badge  of  inferiority  is,  that  the 
people,  if  they  see  fit  to  proceed  by  the  means  of  amendments 
to  the  Constitution,  may  abridge,  or  even  destroy  them. 

§  158.  But  while  our  fundamental  law  stands  untouched, 
the  powers  of  legislation  and  administration  held  by  the  several 
states,  are  derived  from  the  same  source,  rest  upon  the  same 
foundation,  are  affected  by  the  same  attribute  of  inviolability, 
as  those  reposed  in  the  government  of  the  United  States. 
That  single  source,  that  common  foundation,  is  the  people.  It 
is  true  that  the  powers  and  functions  intrusted  to  the  central 
organization  have  a  wider  field  of  activity,  are,  in  their  essence, 
higher  and  more  national  than  those  intrusted  to  the  local 
commonwealths  ;  but  within  their  respective  limits  of  opera- 
tion, each  class  is  uncontrolled  by  the  other. 

§  154.  Such  is  the  plan  of  the  entire  political  structure,  and 
its  wisdom  and  efficiency  have  been  proved  by  the  whole 
course  of  our  history.  Those  affairs  which  are  peculiarly 
national,  which  affect  the  body  of  citizens,  are  managed  by  the 
one  central  government  created  by  the  people.  Those  affairs 
which  are  local,  which  affect  the  individual  citizen  in  his  pri- 
vate capacity  abstracted  from  his  relations  to  the  whole  polit- 
ical society,  are  managed  by  the  separate  state  governments 
which  were  found  in  existence  and  left  remaining  in  existence 
by  the  same  Constitution. 

§  155.  The  whole  civil  polity  is  thus  based  upon  two  grand 
ideas  as  its  foundations  and  supports  ;  the  idea  of  Local  Self- 
Government,  and  the  idea  of  Centralization.     The  first  was 


CENTRALIZATION  AND   LOCAL  SELF-GOVERNMENT.   101 

borrowed  from  the  tribal  customs  of  the  Saxons  and  other 
Germanic  tribes  who  invaded  Western  Europe  ;  the  second  ii 
a  heritage  from  Rome.  The  one  is  the  safeguard  of  liberty, 
the  other  the  source  of  power ;  —  liberty  and  power,  two  ele- 
ments which  should  enter  into  every  political  society.  The 
history  of  the  world  is  the  history  of  struggles  between  these 
contending  forces.  In  a  perfect  State  they  would  be  so  com- 
bined that  there  should  be  just  so  little  power  as  was  necessary 
to  protect  and  guarantee  the  largest  amount  of  liberty.  It  is 
a  nice  equation  to  adjust  so  that  these  variables  may  exactly 
counterbalance  each  other.  The  endeavors  of  the  one  force 
to  rise,  and  of  the  other  to  repress,  have  checkered  the  annals 
of  every  people  with  wars,  anarchy,  oppression,  and  revolt. 
History  points  to  but  few  instances  in  which  an  equilibrium 
has  been  reached  and  for  any  long  period  of  time  maintained. 
England  and  our  own  country  are,  perhaps,  the  only  countries 
in  our  own  age  in  which  it  can  be  pretended  that  the  contend- 
ing forces  have  settled  to  rest. 

§  156.  A  single,  centralized  government  is  necessary  in 
order  that,  there  should  be  power  to  maintain  the  integrity 
of  the  nation.  Local  self-governments  are  necessary  in  order 
that  there  should  be  individual  liberty  enough  to  meet  the 
encroachments  of  the  central  power  and  maintain  the  freedom 
of  the  citizen.  As  political  writers  have  regarded  the  one 
or  the  other  of  these  results  the  more  important,  they  have 
favored  the  one  or  the  other  form  of  administration. 

Jefferson  was,  in  theory,  a  passionate  lover  of  liberty,  and 
he  was  fearful  that  the  Constitution  gave  too  much  scope  to 
the  national  rulers.  Other  public  men  of  a  former  day  dwelt 
more  on  the  necessity  of  a  strong  force  at  the  centre  to  keep 
together  the  parts  whose  natural  tendency  was  outward  ;  and 
they  feared  that  the  several  states  had  been  left  in  possession 
of  too  many  and  great  capacities,  which  would  finally  be  de- 
structive of  unity,  and,  as  a  consequence,  of  liberty.  We  be- 
lieve that  both  these  schools  of  theorists  were  wrong.  We 
believe  that  the  Constitution  grants  to  the  agents  appointed  to 
manage  the  national  affairs,  power  enough  to  meet  any  emer- 
gency.    We  also  believe  that  it  has  clothed  the  separate  states 


102  LOCAL  SELF-GOVERNifENT. 

with  capacities  to  limit  and  restrain  any  unlawful  exercise  of 
that  power,  and  to  preserve  our  liberties  to  all  time.  Our 
fathers,  by  an  almost  divine  prescience,  struck  the  golden 
mean,  and  devised  a  scheme  in  which  these  opposing  forces 
meet,  not  to  neutralize  and  destroy,  but  to  support  and 
strengthen  eacli  other. 

§  157.  Botli  of  these  elements  are  necessary  to  the  highest 
good  of  the  nation.  Blot  out  the  states,  or  reduce  their  func- 
tions to  a  mere  form,  and  the  general  government,  although 
elective,  would  ere  long,  become  a  despotism.  We  should 
have  repeated,  in  our  own  country,  the  imperial  policy  of  the 
French,  of  an  emperor  who  was  chosen  by  the  almost  unani- 
mous vote  of  his  subjects.  Blot  out  the  general  government, 
or  reduce  it  to  a  shadow,  and  we  should  destroy  our  prosper- 
ity, and  with  it  the  means  of  maintaining  our  position  and 
influence  among  nations  ;  we  should  inaugurate  a  condition  of 
prostration  and  anarchy  worse  even  than  that  of  the  Confed- 
eration. While,  therefore,  I  oppose  any  attempts  on  the  part 
of  the  separate  states  to  assert  their  own  sovereignty,  I  would 
oppose,  with  equal  earnestness,  any  attempts  on  the  part  of 
the  nation  towards  consolidation. 

§  158.  Let  us  examine  a  little  more  closely  the  manner  in 
which  the  idea  of  local  self-government  has  been  applied  in 
organizing  the  American  people.  The  principle  is  made 
effective  at  the  very  foundation  of  the  system.  We  have  the 
ascending  scale  of  towns,  counties,  states,  nation.  Villages 
and  cities  are  modifications  of  towns,  created  under  special 
acts  of  incorporation,  rather  than  by  the  general  laws  of  the 
commonwealth.  In  each  of  these  four  grades,  rights,  powers, 
and  capacities  are  exercised,  which  are  limited  by  the  territory 
and  the  peculiar  local  needs  of  the  particular  class.  The  peo- 
ple of  a  town  meet  to  discuss  and  settle  certain  matters  which 
relate  solely  to  their  own  small  vicinage.  The  people  of  a 
county  choose  a  legislative  body  which  manages  the  concerns 
of  that  community,  consisting  of  several  towns.  The  people 
of  a  state  delegate  their  powers  to  a  government,  whose  juris- 
diction extends  through  the  limits  of  that  commonwealth,  and 
includes  all  subjects  of  legislation  which  affect  the  citizen  in 


LOCAL   SELF-GOVERNMENT.  103 

his  personal  and  private  relations,  which  define  his  rights  of 
security  and  property,  and  the  obligations  he  incurs  by  virtue 
of  his  being  a  local  inhabitant,  or  by  virtue  of  his  acts  towards 
others.  Finally  the  people  of  the  United  States  delegate  a 
portion  of  their  powers  to  rulers,  who  may  legislate  for  them 
in  respect  to  all  matters  which  peculiarly  concern  them  as  a 
nation. 

§  159.  According  to  our  present  policy,  this  gradation  is 
fixed.  It  might,  indeed,  be  destroyed.  Any  state  might  so 
change  its  organic  law  as  to  dispense  with  the  divisions  into 
towns  and  counties,  and  might  commit  to  the  state  legislature 
the  entire  control  over  subjects  of  the  most  trivial  and  local 
interest.  That  body  might  be  invoked  to  lay  out  every  road, 
build  every  bridge,  or  lay  every  partial  tax  and  assessment. 

Such  an  alteration  would  be  antagonistic  to  principles  which 
are  a  part  of  our  race  life.  For  we  did  not  invent  this  method 
of  distributing  legislative  and  administrative  functions  among 
local  communities,  this  scheme  of  dividing  the  labors  and  du- 
ties of  government,  and  allotting  a  special  portion  to  that  body 
most  capable  of  performing  it.  The  germs  of  this  policy  are 
to  be  found  among  the  rude  Saxons  in  England  at  the  earliest 
period  which  history  permits  us  to  reach  in  our  explorations 
of  the  past.  The  other  Germanic  tribes  who  settled  in  West- 
ern Europe,  exhibited  traces  of  the  same  ideas  among  them, 
before  being  overwhelmed  by  the  barbaric  force  of  feudalism, 
and  buried  under  the  imperial  policy  borrowed  from  the  tra- 
ditions of  Rome.  The  Saxon  Hundreds  and  Shires  are  the 
historical  representatives  of  American  towns  and  counties. 

§  160.  "  The  free  Anglo-Saxons  and  their  territory  were 
divided  up,  for  the  purposes  of  civil  administration  and  the 
preservation  of  peace  and  mutual  protection,  into  separate  local 
organizations.  At  the  basis  of  this  lay  two  elementary  prin- 
ciples, the  tie  of  the  family,  kindred  or  clan,  and  the  tie  of 
territory.  During  the  period  of  Anglo-Saxon  history  with 
which  we  are  acquainted,  the  Tything  was  the  elemental  divis- 
ion. This  does  not  seem  to  have  been  founded  upon  a  terri 
torial  basis,  but  was  composed  of  ten  families  or  households  of 
freemen  not  in  the  *  mund,'  or  under  the  protection,  as  vas 


104  SAXON  LOCAL   SELF-GOVERNMENT. 

sals,  of  a  superior  lord.  The  head  or  officer  of  this  small  organ- 
ization was  the  tjthing-man,  answering  to  the  '  Decanus ' 
among  the  Franks.  Each  head  of  a  family  was  answerable  for 
the  good  behavior  of  all  the  other  members  of  his  tything, 
and  thus  the  whole  society  was  organized  upon  the  principle 
of  local  and  personal  suretyship. 

§  161.  "  The  division  next  in  order  to  the  Tything  was  the 
Hundred.  It  has  been  assumed  by  different  writers  to  have 
been  composed  of  a  hundred  hydes  of  land,  of  a  hundred  free 
families,  of  a  hundred  tythings,  or  of  a  hundred  freemen. 
One  supposition  would  make  its  basis  territorial,  the  others 
numerical.  It  is  certain,  however,  that  the  Hundred  con- 
tained a  considerable  number  of  free  households  ;  that  it  was  a 
permanent  association  ;  that  it  had  a  chief  officer  or  head 
called  the  Hundred-man  ;  that  once  in  each  month  the  free- 
men assembled  in  a  district  court,  where  they  not  only  trans- 
acted judicial  business,  but  conferred  and  determined  upon  all 
other  matters  of  local  interest.  This  union  of  the  free  men  of 
each  hundred  into  a  local  tribunal  was,  indeed,  the  distinguish- 
ing feature  of  the  association.  The  Burgh  was  only  a  hun- 
dred or  an  union  of  hundreds  in  a  more  compact  form,  sur- 
rounded by  a  moat,  or  stockade,  or  wall. 

§  162.  "  The  Shires  were  strictly  territorial  divisions.  Some 
were  in  their  origin  ancient  Kingdoms,  as  Kent,  and  Sussex ; 
others  were  formed  by  a  dismemberment  of  these  states.  The 
shire,  having  definite  boundaries,  included  within  its  limits  free 
inhabitants  grouped  into  tythings  and  hundreds,  and  kings' 
thanes  with  their  vassals,  and  religious  houses  and  corporations 
with  their  tenants  and  dependents.  The  chief  officer  was  the 
Ealdorman.  The  local  affairs  were  administered  through  the 
bhire-courts. 

§163.  "These  territorial  divisions  of  the  Anglo-Saxons, 
together  with  some  of  their  powers  and  privileges,  have  been 
retained  to  the  present  time  in  England  and  most  of  the  Amer- 
ican states.  Our  own  counties  and  states,  with  their  local 
legislation,  represent  the  Saxon  idea  of  a  political  organization, 
in  withdrawing  the  administration  of  much  that  concerns  the 
interests  of  the  people,  from  the  central  or  imperial  govern 


LOCAL   SELF-GOVERNMENT.  105 

ment  of  the  state,  and  confiding  it  directly  to  the  body  of  cit- 
izens within  the  limits  of  the  district."  1 

§  164.  We  have  thus  a  plain,  historical  origin  of  the  prin- 
ciple of  local  self-government.  This  element  lay  at  the 
foundation  of  the  whole  Saxon  polity.  It  has  been  preserved 
in  the  English  shires  and  ancient  municipal  corporations  or 
boroughs,  with  their  immemorial  privileges.  In  many  of  the 
American  states  it  is  guarded  with  even  more  jealousy  than  in 
the  mother-country.  We  have  extended  the  principle  a  step 
farther ;  to  our  towns  and  counties  we  have  added  the  states. 
But  all  of  this  scheme  is  but  the  outgrowth  from  the  primitive 
germ  that  existed  in  the  Saxon  Tything. 

As  these  local  divisions,  with  their  gatherings  of  the  people, 
and  their  territorial  jurisdiction,  preserved  the  seeds  of  liberty 
in  England,  and  finally  triumphed  over  the  crown  in  the 
progress  of  their  development  into  a  complete  representative 
form  of  government,  so  are  the  same  and  similar  local  commu- 
nities among  us  necessary  to  the  preservation  of  liberty  and 
the  maintenance  of  that  due  balance  which  shall  at  once  pre- 
vent anarchy  and  absolutism. 

1  Pomeroy's  Introduction  to  Municipal  Law,  §§  386-390. 


CHAPTER    II. 

THE    EXTERNAL    FORM    AND    ORGANIZATION    OF    THE    GOVERN- 
MENT. 

§  165.  The  subjects  presented  in  the  present  and  succeed- 
ing chapters  require  a  constant  and  careful  examination  of  the 
very  letter  of  the  Constitution.  Thus  far  the  organic  law  has 
rather  been  treated  as  a  whole,  as  the  work  of  one  people,  as 
the  expression  of  the  national  will.  An  endeavor  has  been 
made  to  obtain  a  just  conception  of  its  general  character,  and 
of  some  elemental  ideas  of  civil  polity  which  find  utterance  in 
its  provisions  ;  we  now  pass  to  the  instrument  itself,  and  com- 
mence to  investigate  its  several  parts,  and  answer  the  most 
important  and  practical  inquiry,  What  are  the  Powers  of  the 
National  Government  ? 

In  the  discussion  of  this  question,  I  now  proceed  to  describe 
the  external  form,  structure,  and  organization  of  the  govern- 
ment which  the  people  contrived  and  established  as  the  means 
of  creating,  interpreting,  and  enforcing  a  system  of  national 
law  for  themselves.  This  scheme,  so  far  as  it  is  a  mere  ex- 
ternal form,  may  be  readily  comprehended ;  the  written  pro- 
visions which  describe  and  set  it  forth  are  concise  and  plain  : 
little  amplification  of  the  very  text  is  needed.  The  point  which 
naturally  suggests  itself  is,  whether  this  plan  be  well  adapted 
to  work  out  those  grand  results  which  were  proposed  to  them- 
selves by  the  framers  of  the  Constitution,  —  the  formation  of  a 
perfect  union,  the  establishment  of  justice,  the  maintenance  of 
domestic  tranquillity,  provision  for  the  common  defence,  pro- 
motion of  the  general  welfare,  and  security  of  liberty  to  our- 
selves and  our  posterity.  For  these  high  purposes  was  the 
Constitution  ordained,  and  the  government  established.  Are 
the  means  the  most  appropriate  to  the  ends  ?     But,  as  was 


THREE   CO-ORDINATE   DEPARTMENTS.  107 

stated  in  the  Introductory  chapter,  no  attempt  will  be  made 
to  enter  into  a  full  examination  of  these  topics,  or  to  present  in 
any  detailed  manner  the  considerations  which  would  enable  us 
to  arrive  at  a  final  decision  of  the  question  whether  our  gov- 
ernment is  so  constituted  as  to  promote  in  the  best  manner  the 
interests  of  the  people.  For  a  complete  discussion  of  this  and 
kindred  subjects,  the  student  is  referred  to  works  professedly 
treating  of  civil  polity,  —  to  Dr.  Lieber's  "  Essay  on  Civil  Lib- 
erty and  Self-Government,"  his  "Treatise  on  Political  Ethics," 
and  to  "  The  Federalist." 

There  are  some  salient  features  of  this  political  organization, 
some  fundamental  principles  upon  which  it  is  based,  which 
enter  into  and  give  form  to  the  whole  structure,  to  which  our 
attention  may  well  be  directed.  These  features  will,  there- 
fore, be  examined  in  the  succeeding  sections  of  the  present 
chapter. 

SECTION   I. 

THE    SEPARATION    OF    THE    GOVERNMENT    INTO     THREE    CO-ORDINATE 
DEPARTMENTS. 

§  166.  We  are  met  at  the  outset  by  the  fact  that  the  gov- 
ernment is  separated  into  three  departments,  acting  in  a  great 
measure  independently  of  one  another,  to  each  of  which  is 
assigned  an  essentially  different  class  of  functions,  and  yet 
between  which  there  is  so  strong  a  tie  of  mutual  support  and 
correlation  that  each  would  be  powerless  without  both  the 
others.  These  departments  are  the  legislative,  the  executive, 
and  the  judicial.1  When  we  turn  to  the  separate  states,  we 
find  all  their  governments  constructed  upon  the  same  plan. 
Was  this  contrivance  accidental,  was  it  based  upon  any  a  priori 

1  Falck  (Cours  a" Introduction  Generate  a  VEtude  du  Droit,  chap.  i.  §  40, 
note  33,)  denies  that  the  judicial  power  is  a  separate  branch  of  sovereign 
power,  or  that  the  judiciary  is  a  separate  department  in  the  government. 
He  asserts  that  it  is  only  a  special  manifestation  of  the  executive.  Nc 
doubt  a  continental  theorist  finds  it  difficult  to  comprehend  the  indepen- 
dence of  the  English,  and  particularly  of  the  American  judiciary. 


108  EUROPEAN  GOVERNMENTS. 

theory,  or  had  it  an  historical  origin  ?  It  was  both  theoretical 
and  historical. 

§  167.  If  we  look  to  Great  Britain,  whence  we  have  derived 
so  many  ideas  of  civil  polity  and  so  many  forms  of  administra- 
tion, we  discover  that  her  imperial  government  is  modelled 
after  the  same  pattern.  The  American  President,  Congress, 
and  Judiciary  are  reproduced  in  the  British  monarch,  Parlia- 
ment, and  Courts.  But  there  is  danger  in  pushing  the  anal- 
ogy too  far.  Nothing  has  been  productive  of  more  confusion 
than  the  habit  of  arguing  from  the  English  to  the  American 
Constitution.  General  resemblances  there  are;  but  the  essen- 
tial difference  in  all  the  practical  details,  and  in  many  of  the 
fundamental  principles,  renders  it  very  unsafe  to  draw  analo- 
gies from  the  British  organic  law  as  aids  in  construing  our 
own.  When  we  look  close  into  the  English  system,  we  shall 
perceive  that  the  separation  of  the  three  departments  with 
them  is  not  so  complete  as  with  us.  The  actual  executive  of 
Great  Britain,  upon  whom  rests  all  the  responsibility  of  ad- 
ministration,—  the  ministers  of  the  crown,  —  have  seats  in 
Parliament,  and  are  directly  amenable  to,  and  under  the  con- 
trol of,  that  legislature.  The  highest  judicial  officer  —  the 
Chancellor  —  is  a  member  of  the  Cabinet,  and  presides  over 
the  House  of  Lords  ;  while  other  judges  may  be  members  of 
the  same  body.  The  Chamber  of  Peers  is  the  supreme  tribu- 
nal of  appeal,  which  may  review  the  decisions  of  the  courts  of 
law  and  of  equity  ;  while  a  committee  of  the  Privy  Council 
has  a  very  extensive  appellate  jurisdiction  over  other  classes 
of  courts. 

§  168.  Should  a  survey  be  extended  over  the  modern  na- 
tions of  Europe,  or  over  the  peoples  of  ancient  times,  no  others 
will  be  found  in  which  this  type  of  government  is  so  distinctly 
followed ;  and  man}'  have  existed  in  which  it  has  been  entirely 
disregarded.  In  Rome,  during  the  Republic,  there  was  an 
approach  towards  such  a  division  of  functions  among  the  Con- 
suls, the  PrsGtors,  the  Senate,  and  the  People.  But  when  the 
Empire  had  become  firmly  established,  and  the  imperial  policy 
completely  organized,  the  traditions  of  the  Republic  were  for- 
gotten or  abandoned;   and  all  legislative,  executive,  and  judi- 


THREE    CO-ORDINATE  DEPARTMENTS.  109 

eial  authority  was  theoretically  and  practically  lodged  in  the 
hands  of  the  august  ruler  who  presided  over  the  destinies  of 
half  the  world.  In  France,  Austria,  Prussia,  and  especially 
in  Italy,  some  approach  has  been  made  to  a  constitutional  gov- 
ernment, and  to  a  separation  of  legislative  and  executive 
powers.  In  none  of  these  countries,  however,  except  in  Italy, 
does  this  separation  approach  in  completeness  and  efficiency 
that  which  exists  in  Great  Britain  ;  and  in  none  of  them  can 
the  judiciary  properly  be  called  an  independent,  co-ordinate 
department  of  the  government. 

§  169.  One  fact  of  history  may  be  considered  as  established, 
—  that  there  has  been  and  is  the  greatest  amount  of  individual 
and  political  liberty  in  those  nations  whose  governments  are 
framed  upon  this  tri-partite  model ;  and  that  just  so  far  as  the 
civil  polity  approaches  towards  a  despotism  are  all  species  of 
power  centred  in  one  ruler  or  body  of  rulers.  If  the  entire 
governmental  force  of  a  nation  is  wielded  by  a  single  person  or 
class  of  persons,  if  he  or  they  may  at  once  make,  interpret,  and 
execute  laws,  there  is  inevitably  abuse  of  power,  destruction 
of  private  rights,  whether  the  one  ruler  be  monarch,  legisla- 
ture, or  the  entire  mass  of  the  people  themselves. 

§  170.  A  proposition  which  is  thus  historically  true,  must 
have  some  firm  foundation  in  the  nature  of  things.  The  pos- 
session of  power  is  one  of  the  most  dangerous  gifts  which  can 
fall  to  the  lot  of  humanity.  The  tendency  is  always  to  its 
abuse.  Power  grows  upon  itself.  In  a  perfect  state,  it  is  not 
enough  that  the  rulers  at  any  given  time  should  be  perfect 
men.  There  must  be  checks  so  contrived  as  to  resist  the  en- 
croachments of  authority,  which  are  to  be  apprehended  even 
from  the  purest  and  most  patriotic  rulers.  No  other  check 
has  proved  so  effectual  as  the  division  of  functions  into  Wis- 
lative,  executive,  and  judicial,  and  their  assignment  to  classes 
of  officials  physically  separate.  If  the  legislature  were  also 
judges,  their  decisions  would  not  be  based  upon  the  law  as  it 
is ;  but,  as  it  would  be  impossible  for  the  same  men  to  keep 
their  two  characters  entirely  distinct,  their  judgments  would 
rather  be  arbitrary  enactments,  special  measures  of  legislation 
for  each  particular  case.     Thus  all   certainty  as   to  the   law 


110  CONSTITUTIONAL  PROVISIONS. 

would  be  lost.  If  the  same  person  or  class  of  persons  were 
to  make  and  execute  the  laws,  the  results  would  be  still  more 
disastrous  ;  for,  in  applying  any  particular  statute,  whatever 
deficiencies  in  its  provisions  had  been  left  by  the  rulers  in  their 
legislative  capacity,  could  be  easily  supplied  by  them  while 
acting  in  their  executive  capacity.  Thus  the  laws,  instead  of 
being  general  commands  enjoining  the  observance  of  general 
rules,  would  become  special  commands  addressed  to  individual 
members  of  society.  This  uncertain  and  special  nature  of  the 
law  is  the  very  essence  of  an  arbitrary  and  tyrannical  govern- 
ment.1 

§  171.  Divide  these  functions,  and  each  is  met  by  resistance 
from  the  others ;  all  must  conspire  to  give  efficacy  to  any  at- 
tempt against  personal  liberty  and  private  rights.  Have  the 
Congress  erred,  the  courts  may  recall  them  to  their  duty. 
Does  the  President  transgress  the  limits  of  his  authority,  the 
legislature  may  force  him  into  his  legitimate  sphere.  Thus 
the  whole  government  is  a  nicely-contrived  balance,  in  which 
the  equable  poise  cannot  long  be  disturbed. 

§  172.  The  Constitution  provides,  in  Art.  I.  Sec.  I.,  that 
"  All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives  ;  "  in  Art.  II.  Sec.  I.  §  1,  that 
"  the  executive  power  shall  be  vested  in  a  President  of  the 
United  States ;  "  and,  in  Art.  III.  Sec.  I.,  that  "  the  judicial 
power  of  the  United  States  shall  be  vested  in  one  Supreme 
Court,  and  in  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish." 

§  173.  This  language  is  clear,  precise,  and  apparently  with- 
out exception  or  limitation.  Yet,  when  we  compare  it  with 
other  clauses  of  the  Constitution,  we  shall  discover  that  the 
separation  of  functions  is  not  thus  perfect ;  that  the  several 
departments  are  not  thus  absolutely  independent  of  each  other. 
Indeed,  such  an  ideal  independence  is  impracticable.  While 
the  classes  of  functions  committed  to  the  legislature,  the  ex- 
ecutive, and  the  judiciary  may  be  generally  or  in  the  mass 
distinct,  there  must  be,  in  the  very  nature  of  things,  some 
1  Montesquieu,  Book.  II.  chap.  vi. 


THREE    CO-ORDINATE   DEPARTMENTS.  Ill 

points  of  contact,  some  overlapping,  some  commingling.  All 
this  threefold  machinery  tends  towards  one  object,  —  the  crea- 
tion and  protection  of  legal  rights,  and  the  creation  and  en- 
forcement of  legal  duties.  It  is  impossible  to  keep  the  lines 
of  communication  perfectly  separate  until  they  meet  in  the 
very  point  at  which  they  are  directed.  How  much  of  this 
intermingling  shall  be  permitted  will,  of  course,  depend  upon 
the  opinions  and  convictions  of  those  who  frame  and  adopt  a 
form  of  government.  We  do  not  admit  as  much  as  is  found 
in  the  British  constitution.  It  cannot  be  denied  that  the  gov- 
ernment is  stronger,  more  compact  and  harmonious,  from  these 
partial  interferences  of  the  various  departments.  The  problem 
presented  to  the  people  was,  to  frame  a  constitution  which  se- 
cured the  largest  amount  of  liberty  with  a  sufficient  degree  of 
strength  and  unity  in  the  entire  administration  to  maintain  and 
perpetuate  our  free  institutions.  A  perfect  ideal,  therefore, 
had  to  give  way  to  some  practical  necessities. 

§  174.  Although  the  Constitution,  in  its  general  language, 
vests  the  legislative  power  in  a  Congress  which  is  declared  to 
consist  of  a  Senate  and  a  House  of  Representatives,  yet  a 
reference  to  other  portions  of  the  organic  law  shows  that  this 
Congress  does  not,  in  fact,  possess  the  sole  legislative  function. 
No  law  can  be  passed  without  the  consent  of  the  Executive, 
unless  two  thirds  of  both  houses  shall  finally  concur  therein. 
The  assent  of  the  President  is  as  necessary  to  the  enactment 
of  any  measure  having  the  nature  of  law,  as  that  of  a  majority 
of  both  branches  of  Congress.  In  this  the  President  leo-is- 
lates.  His  affirmative  or  negative  decision  is  a  step  in  the 
process  of  creating,  and  not  of  executing,  laws.  By  virtue 
of  the  various  provisions  of  the  Constitution,  the  Congress  is 
in  fact,  though  not  formally  and  in  terms,  composed  of  three 
distinct  bodies,  —  President,  Senate,  and  House  of  Represent- 
atives ;  and  all  must  concur,  with  the  single  exception  just 
noticed,  that  a  two-thirds  vote  of  both  the  other  branches  avails 
against  the  dissent  of  the  Executive. 

§  175.  But  the  legislative  function  of  the  President  is  in 
every  way  inferior  to  that  held  by  the  Senate  and  by  the 
House  of  Representatives.     This  inferiority  consists,  first,  in 


112  PRESIDENT'S    LEGISLATIVE    FUNCTION. 

the  fact  that  his  negative  vote  may  be  overruled  by  two  thirds 
of  the  Congress,  or,  in  other  words,  that  a  majority  of  two 
thirds  practically  dispenses  with  his  concurrence;  and,  sec- 
ondly, in  the  fact  that  the  President  cannot  originate  any  leg- 
islative measure.  He  may  communicate  information,  and 
recommend  measures  to  the  consideration  of  Congress  (Art. 
II.  Sec.  III.),  but  he  cannot  directly  set  in  motion  any 
scheme  of  legislation  ;  he  must  await  the  definitive  action  of 
the  two  Houses,  and  add  or  refuse  his  consent  to  their  per- 
fected work. 

§  17G.  It  is  evident  that  our  own  national  legislature  is,  in 
respect  to  the  power  of  the  Executive,  copied  from  that  of 
Great  Britain,  which  consists  of  three  orders,  —  King,  Lords, 
and  Commons.  But  here,  as  in  many  other  important  fea- 
tures of  the  American  civil  polity,  it  is  dangerous  to  push  the 
analogy  too  far.  While  the  resemblance  between  the  power 
of  the  Crown  and  that  of  the  President  lies  on  the  very  sur- 
face and  at  once  arrests  attention,  the  differences,  which  lie 
deeper,  are  far  more  important  both  in  theory  and  in  practice. 
These  differences  inhere  in  the  very  constitution  of  the  British 
Parliament,  as  compared  with  that  of  the  American  Congress. 
In  pure  theory,  the  Parliament  is  composed  of  King,  Lords, 
and  Commons.  At  one  time  this  theory  represented  an  exist- 
ing and  potent  fact.  Its  outward  form  is  preserved  to  the 
present  day ;  and  not  a  statute  is  now  passed  which  does  not 
purport  to  be  "  enacted  by  the  Queen's  Most  Excellent  Maj- 
esty, by  and  with,  the  consent  of  the  Lords  Spiritual  and 
Temporal,  and  Commons,  in  this  present  Parliament  assem- 
bled, and  by  the  authority  of  the  same."  But,  while  the  form 
is  clung  to,  the  substance  has  gone;  the  crown  is  a  mere 
pageant ;  the  executive  department  is  virtually  merged  in  the 
legislative  ;  the  ministers,  who  are  and  must  be  members  of 
Parliament,  possess,  as  such  members,  the  function  of  origi- 
nating measures  ;  but  the  power  to  refuse  the  Executive  con- 
sent to  measures  that  have  passed  the  two  Houses  has  practi- 
cally ceased  to  exist.  While,  therefore,  the  words  which  are 
generally  used  to  describe  the  legislative  function  of  the  Brit- 
ish Crown  are  far  stronger  than  those  which  define  the  similar 


THREE   CO-ORDINATE   DEPARTMENTS.  113 

capacity  of  the  American  President,  the  substantial  power  of 
the  latter  is  by  far  the  greater.  It  is  said  that  the  King  has 
the  prerogative  of  an  absolute  veto  ;  the  exercise  of  this  pre- 
rogative would  doubtless  produce  a  revolution.  As  the  min- 
isters who  constitute  the  responsible  executive  are  members  of 
Parliament,  it  follows  as  a  matter  of  course  that  the  British 
Legislature  has  grasped  and  now  wields  both  the  creative  and 
the  administrative  function,  and  that  the  assent  of  two  Houses 
or  branches  only  is  practically  necessary  to  the  enactment  of 
law. 

§  177.  The  President's  power  of  legislation  is  far  more  sub- 
stantial. His  independence  of  the  Congress  constitutes  him 
an  effective  check  upon  the  acts  of  that  body.  Nothing  less 
than  a  two-thirds  majority  of  both  Houses  can  reduce  him  to 
the  level  of  the  British  Crown.  The  doctrine  has  been  ad- 
vanced and  maintained  with  some  earnestness,  both  in  former 
times  and  recently,  that  the  President  can  only  refuse  his 
assent  to  a  proposed  measure  when  he  deems  it  to  be  uncon- 
stitutional, to  be  a  step  beyond  the  limits  of  legislative  author- 
ity, an  usurpation  of  power  by  the  Congress.  There  is  no 
ground  whatever  for  this  notion.  The  Constitution  places  no 
restraint  upon  the  discretion  of  the  Executive.  He  may  be 
guided  by  motives  of  expediency  in  granting  or  withholding 
his  affirmative  vote,  as  well  as  any  Senator  or  Representative. 
Art.  I.  Sec.  VII.  says :  "  Every  bill  which  shall  have  passed 
the  House  of  Representatives  and  the  Senate,  shall,  before  it 
become  a  law,  be  presented  to  the  President  of  the  United 
States.  If  he  approve,  he  shall  sign  it ;  but,  if  not,  he  shall 
return  it,  with  his  objections,  to  that  House  in  which  it  shall 
have  originated,  who  shall  enter  the  objections  at  large  on 
their  journal,  and  proceed  to  reconsider  it.  If,  after  such  re- 
consideration, two  thirds  of  that  House  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
House,  by  which  it  shall  likewise  be  reconsidered  ;  and,  if 
approved  by  two  thirds  of  that  House,  it  shall  become  a  law. 
....  If  any  bill  shall  not  be  returned  by  the  President 
within  ten  days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the  same  shall  be  a  law  in  like  manner  as  if 


11  A  PRESIDENT'S   LEGISLATIVE   FUNCTION. 

he  had  signed  it,  unless  the  Congress,  by  their  adjournment, 
prevent  its  return,  in  which  case  it  shall  not  be  a  law. 

"  Every  order,  resolution,  or  vote,  to  which  the  concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary 
(except  on  a  question  of  adjournment),  shall  be  presented  to 
the  President  of  the  United  States,  and,  before  the  same  shall 
take  effect,  shall  be  approved  by  him  ;  or,  being  disapproved 
by  him,  shall  be  repassed  by  two  thirds  of  the  Senate  and 
House  of  Representatives,  according  to  the  rules  and  limita- 
tions prescribed  in  the  case  of  a  bill." 

Here  are  no  restrictions  upon  the  nature  and  quality  of  the 
objections  which  the  Chief  Magistrate  may  oppose  to  any  stat- 
ute. That  Presidents  have  seldom  exercised  their  right  to 
stop  the  passage  of  any  measure  because  they  deemed  it  to  be 
inexpedient,  while  they  admitted  its  constitutionality,  is  no 
ground  for  denying  the  existence  of  the  power.  They  have 
generally  deferred  to  the  direct  representatives  of  the  people 
on  all  questions  of  mere  policy. 

§  178.  Is  the  assent  of  the  President  necessary  to  amend- 
ments of  the  Constitution  proposed  by  the  Congress  ?  In 
other  words,  is  such  an  amendment  a  bill,  order,  resolution,  or 
vote,  which  must  be  submitted  to  the  Executive  for  his  ap- 
proval ?  The  uniform  practice  of  the  legislative  and  the 
executive  departments  has  answered  this  question  in  the  neg- 
ative ;  and  the  construction  thus  placed  upon  the  Constitution 
may  be  considered  as  final.  Several  independent  considera- 
tions lead  to  this  result.  The  language  of  Art.  V.  is  quite 
different  from  that  used  in  Art.  I.  Sec.  VII. :  "  The  Congress, 
whenever  two  thirds  of  both  Houses  shall  deem  it  necessary, 
shall  propose  amendments  to  this  Constitution,"  &c.  "  Con- 
press  "  is  here  used  in  its  technical  sense  as  descriptive  of  the 
two  Houses.  As  two  thirds  of  each  House  are  necessary  to 
initiate  the  process  of  amendment,  it  would  seem  unnecessary 
to  require  the  assent  of  the  President,  when  a  majority  so 
great  may  overrule  his  dissent.  Finally,  a  proposed  amend- 
ment does  not  seem  to  be  an  "  order,  resolution,  or  vote " 
intended  by  the  §  3  of  Art.  I.  Sec.  VII.  Such  an  act  of  Con- 
gress is  in  no  sense  legislative ;   it  is  a  mere  proposal ;  it  has 


TIIREE    CO-OkDINATE   DEPARTMENTS.  115 

none  of  tbe  elements  of  law ;  it  is  a  laying  before  the  people 
certain  propositions  for  their  consideration  ;  and  the  people, 
through  their  state  legislatures  or  conventions,  are  the  sole 
legislators.  This  subject  has  received  much  attention  in  very 
recent  times,  as  well  as  at  the  earliest  period  of  the  present 
government,  and  has  been  settled  so  far  as  the  joint  action  of 
President  and  legislature  can  settle  a  question  of  construction. 

§  179.  The  Executive  possesses  another  legislative  function 
of  an  exalted  character.  Treaties  entered  into  by  the  United 
States  are  declared  by  the  Constitution  to  be  the  supreme  law  of 
the  land.1  Their  quality  as  law  is  so  high  that  Congress  can 
only  destroy  them  by  a  single  act  of  legislation,  namely,  by  a 
declaration  of  war  against  the  nations  with  whom  they  are 
made.  Yet  the  treaty-making  power,  this  authority  to  pass 
laws  which  shall  be  supreme  even  over  the  ordinary  proceed- 
ings of  Congress,  is  confided  to  the  President,  under  the  sin- 
gle limitation  that  his  work  must  be  submitted  to  the  Senate 
and  ratified  by  two  thirds  of  that  body.2  He,  however,  holds 
the  initiative  ;  the  upper  House  can  only  accept  or  reject  his 
decrees,  they  cannot  dictate  a  treaty. 

§  ISO.  I  will  very  briefly  mention  some  further  instances  in 
which  the  peculiar  functions  of  one  department  are  partially 
shared,  by  another.  The  appointment  of  officers  is  plainly  an 
executive  act,  and  the  power  to  appoint  is  conferred  upon  the 
President,  or  some  of  his  subordinates.  Yet  most  appoint- 
ments made  by  the  President  must  receive  the  concurrence  of 
the  Senate.3  The  trial  of  impeachments  is  peculiarly  a  judi- 
cial act,  yet  the  Senate  is  the  only  court  for  that  purpose.4 
Tn  addition  to  these  cases  of  direct  interference,  there  exist  fea- 
tures in  the  general  organization  which  afford  opportunities  for 
the  exertion  of  a  vast  influence  by  one  department  upon  another. 
The  judges  are  not  chosen  independently  of  the  President  and 
the  Senate,  but  are  placed  in  office  by  the  concurring  assent 
of  both.  The  House  of  Representatives  may  be  called  upon 
to  elect  the   Chief  Magistrate  himself  in    the   event  that   a 

1  Const.  Art.  VI.  §  2.  2  Const.  Art.  II.  Sec.  II.  §  2. 

3  Ibid.  4  Ibid.  Art.  I.  Sec.  III.  §  6 


116  TIIE  GREATEE   TOWER  OF  CONGRESS. 

majority  of  electors  have  failed  to  unite  upon  the  same  person 
for  that  office.1 

§  181.  While,  therefore,  the  general  plan  of  the  govern- 
ment assumes  three  co-ordinate,  independent  departments,  and 
while  these  several  departments  are,  in  the  main,  free  from 
each  other's  control,  they  are,  from  necessity,  linked  together 
by  many  ties,  both  of  function  and  of  influence.  One  does,  at 
times,  perform  some  of  the  peculiar  duties  of  another. 

I  have  here  purposely  refrained  from  speaking  of  the  vast 
legislative  attributes  which  inhere  in  a  free  judiciary  under 
our  own  and  the  English  system,  because  this  would  lead  into 
an  extended  discussion  foreign  from  the  immediate  purposes 
of  the  present  work. 

§  182.  Among  these  three  departments  there  will  always 
be  a  tendency  in  each  to  encroach  upon  the  special  province 
of  the  others,  or  to  enlarge  the  sphere  of  its  own  governmental 
action.  The  Constitution  endeavors  to  draw  the  lines  of  de- 
marcation between  them  ;  they  are  placed  as  checks  upon  each 
other  ;  the  whole  system  was  carefully  planned  so  as,  if  pos- 
sible, to  prevent  any  and  all  acts  of  usurpation,  by  making  one 
department  necessary  to  the  others.  But  the  organic  law 
must,  of  necessity,  use  general  terms  ;  it  cannot  descend  to 
any  minuteness  of  detail  without  becoming  a  code  of  special 
precepts  rather  than  a  guide  to  the  government  in  its  work  of 
legislation.  The  checks  and  counterpoises  of  the  Constitu- 
tion, are  also,  in  a  great  measure,  moral ;  the  sanctions  are 
slow  in  their  operation,  and  may  never  be  put  in  motion.  Ad- 
mirable, therefore,  as  is  the  system,  it  cannot  entirely  prevent 
those  results  which  naturally  flow  from  the  possession  of  power  ; 
each  department  will  strive  to  increase  the  scope  of  its  own 
functions,  even  at  the  expense  of  the  others. 

§  183.  In  this  inevitable  struggle  the  popular  branch  —  the 
legislature  —  will  always  obtain  and  hold  the  ascendant.  The 
superiority  which  thus  belongs  to  Congress  results  from  two 
causes,  —  the  greater  power  of  that  body,  and  its  greater  incli- 
nation to  use  that  power.  It  is  in  itself  plainly  the  most  power- 
ful in   that  the  function  of  creating  law  is  higher,  and  more 

i  Const.  Art.  II.  Sec.  I.  §  3. 


THREE   CO-ORDINATE  DEPARTMENTS.  117 

forcible  than  that  of  applying  or  expounding.  The  other 
departments  must  await  the  action  of  the  legislature,  which 
always  holds  the  initiative  ;  and  neither  of  them  can  bring  any 
sanction  to  bear  directly  upon  that  body,  and  thus  prevent  its 
contemplated  acts.  It,  therefore,  more  than  the  others,  can 
break  over  the  barriers  which  the  organic  law  has  raised  to 
restrain  its  lawlessness.  The  history  of  England  shows  how 
Parliament  has  advanced,  step  by  step,  in  its  acquisitions  of 
power,  until  it  has  reduced  the  crown  to  a  cipher,  and  made 
the  ministers  of  the  King  its  own  servants;  and  how,  finally, 
the  Commons  has  substantially  drawn  all  these  vast  accumula- 
tions of  power  to  itself,  and  forced  the  Lords  into  a  position  of 
comparative  insignificance.  It  may  be  said  that  Parliament 
has  been  restrained  by  no  written  Constitution  defining  the 
exact  measure  of  its  functions.  This  is  true  ;  but  it  has  been 
restrained  by  influences  more  potent  than  written  enactments 
can  be,  unless  the  will  and  consent  of  the  people  is  constantly 
upholding  and  giving  life  to  the  positive  provisions  of  the  or- 
ganic law  ;  it  has  been  restrained  by  the  habits  of  thought  of 
the  English  subjects,  by  the  tremendous  power  of  class  inter- 
ests and  prejudices,  by  a  traditionary  system  which  has  left  its 
mark  upon  every  public  act  of  the  British  government. 

§  184.  If  the  English  King,  with  his  ancient  despotic  power, 
and  his  present  influence  as  theoretical  head  of  the  nation,  to 
whom  the  allegiance  of  his  subjects  is  due,  aided  by  the  sup- 
port of  a  civil  and  an  ecclesiastical  hierarchy,  has  not  been 
able  to  resist  the  rising  tide  of  parliamentary  progress,  how 
shall  the  President  of  the  United  States,  with  his  limited  and 
defined  functions,  his  liability  to  impeachment,  his  responsibil- 
ity to  the  people,  and  his  brief  term  of  office,  be  able  to 
oppose  any  permanent  obstacle  to  the  steady  advance  of  Con- 
gress, much  less  to  turn  that  advance  backward  and  despoil 
the  legislature  of  their  rightful  attributes  ?  The  prerogatives 
once  held  by  the  British  Crown  which  he  might  use  against 
the  Parliament,  were  immeasurably  more  efficient  than  any 
oower  lodged  in  the  hands  of  the  President,  but  these  have 
been  either  directly  wrested  from  him,  or  they  have  been  so 
completely  abandoned  by  non-user,  that  anv  exercise  of  them 


118  THE   GREATEB    POWEB   OF    JONGRES6. 

would  be  the  signal  for  a  revolution.  The  President  cannot 
coerce  the  Congress  ;  the  Supreme  Court  cannot  directly  in- 
terfere  with  the  proceedings  of  Congress  ;  but  the  House  of 
Representatives  may  impeach,  and  the  Senate  may  condemn, 
both  President  and  judges  ;  and  although  the  Congress  may 
not  abolish  the  national  judiciary,  they  may  curtail  its  functions 
and  reorganize  the  tribunals.  The  legislature  is,  therefore, 
the  most  powerful  both  in  the  essential  nature  of  its  general 
functions,  and  in  the  special  capacities  which  have  been  com- 
mitted to  it. 

§  185.  But  Congress  has  also  greater  inclination  and  more 
opportunities  to  use  and  enlarge  its  power  than  are  possessed 
by  the  other  departments.  This  disposition  is  not  peculiar  to 
our  own  national  legislature,  it  belongs,  and  must  of  necessity 
belong,  to  all  popular  assemblies.  Whatever  motives  may  act 
upon  a  single  chief  magistrate,  impelling  him  to  amplify  his 
field  of  action,  will  also  act  upon  each  individual  legislator. 
But  the  single  mao-istrate  must  be  restrained  in  some  measure 
by  the  force  of  public  opinion,  and  by  the  sense  of  a  respon- 
sibility shared  with  himself  by  no  one  ;  the  responsibility  rests 
upon  the  legislator  with  a  lessened  weight  as  it  is  divided 
between  him  and  all  his  fellows  ;  the  force  of  public  opinion  is 
broken  in  his  case  by  its  encounter  with  the  whole  body  of 
law-makers.  That  this  tendency  does  exist  in  a  legislature  to 
enlarge  its  jurisdiction,  to  encroach  upon  that  of  other  depart- 
ments, to  usurp  power,  is  proven  by  the  history  of  the  British 
people  ;  it  is  no  less  clearly  shown  in  our  own  history,  and 
especially  in  that  of  the  past  few  years. 

§  186.  I  am  strongly  of  opinion  that  the  people  of  the  Uni- 
ted States  are  not  in  so  much  clanger  from  an  undue  stretch  of 
authority  by  President  or  by  judges,  as  from  unlawful  assump- 
tions by  Congress.  The  Constitution  is  well  so  far  as  it  goes; 
the  design  was  good  ;  the  checks  and  balances  were  carefully 
and  skilfully  arranged ;  but  no  mere  organic  law  can  place  a 
lasting  barrier  to  the  advance  of  a  popular  legislature.  Step 
by  step  their  powers  are  exceeded  ;  the  nation  acquiesces  ; 
the  precedent  becomes  established  ;  and  a  system  of  construc- 
tion is  finally  elaborated  which  takes  the  place  of  the  written 


THREE  CO-ORDINATE  DEPARTMENTS.  119 

Constitution  as  a  practical  guide  to  the  government  in  its 
official  duties. 

One  power  alone  can  stay  the  legislature  in  its  gradual  march 
towards  the  possession  of  all  political  attributes,  —  that  of  the 
people.  If  the  people  shall  always  give  a  life  to  the  provisions 
of  the  Constitution,  if  they  shall  impart  their  own  force  as  a 
constant  energy  in  the  complicated  machine,  their  servants 
and  agents  may  easily  be  kept  within  the  bounds  assigned  to 
them.  But  without  this  life  and  force,  the  process  I  have 
described  is  sure ;  we  may  regret,  but  we  cannot  prevent  it. 

§  187.  The  evils  which  would  result  from  a  substantial  con- 
centration of  all  power  in  Congress  cannot  be  enumerated. 
Unless  our  forefathers  were  wholly  wrong,  unless  the  organic 
law  is  framed  upon  an  entire  misconception  of  the  needs  of  a 
free  people,  and  of  the  objects  of  government,  the  three  depart- 
ments, legislative,  executive,  and  judicial,  must  be  kept  sepa- 
rate, independent,  co-ordinate.  The  question  of  the  power  to 
be  wielded  by  the  legislature  was  discussed  and  settled.  If 
the  tendencies  of  the  present  day  are  right,  then  all  the  framers 
of  the  Constitution,  and  the  people  who  adopted  it,  were  wrong. 
Should  Congress,  as  now  organized,  practically  draw  all  the 
attributes  and  functions  of  government  to  itself,  and  reduce 
the  executive  and  judiciary  to  a  condition  of  substantial  de- 
pendence upon  itself,  the  next  step  would  inevitably  follow  ; 
and  this  would  be  the  consolidation  of  the  national  legislature 
into  one  body.  The  Senate  would  be  pronounced  an  unne- 
cessary and  hurtful  clog  upon  the  free  activity  of  the  more 
popular  branch.  Even  now  such  a  step  is  publicly  advocated. 
Should  this  result  be  accomplished,  the  liberties  of  the  people 
would  be  gone,  only  to  be  regained  by  another  revolution. 
Nothing  could  withstand  a  legislature  consisting  of  one  house, 
practically  wielding  all  governmental  power,  restrained  by  no 
checks  of  organization  or  function.  No  tyranny  could  equal 
its  tyranny. 


120         SENATE   AND   HOUSE   OF   REPRESENTATIVES. 


SECTION    II. 

THE      SEPARATION     OF    THE      LEGISLATURE    INTO    TWO     CO-ORDINATE 

BRANCHES. 

§  188.  The  second  feature  in  the  organization  of  the  gov- 
ernment which  I  shall  notice  is,  the  division  of  the  Legislature 
into  two  co-ordinate  branches,  the  Senate  and  the  House  of 
Representatives,  —  the  one  chosen  directly  by  the  people,  the 
other  appointed  directly  by  the  legislatures  of  the  several  states. 
Art.  I.  Sec.  I.  declares  that  the  Congress  "  shall  consist  of  a 
Senate  and  House  of  Representatives."  Art.  I.  Sec.  II.  §  1, 
says  that  "  the  House  of  Representatives  shall  be  composed 
of  representatives  chosen  every  second  year  by  the  people  of 
the  several  states."  Art.  I.  Sec.  III.  §  1,  provides  that  "  the 
Senate  of  the  United  States  shall  be  composed  of  two  senators 
from  each  state,  chosen  by  the  legislature  thereof,  for  six  years, 
and  each  senator  shall  have  one  vote." 

Of  the  advantages  and  even  necessity  of  this  dual  arrange- 
ment, I  do  not  now  intend  to  speak.  The  subject  is  fully 
discussed  in  Dr.  Lieber's  "  Treatise  on  Civil  Liberty,"  and  in 
"  The  Federalist."  This  double  legislature  has  approved  itself 
so  well  that  all  the  states  have  formed  their  local  assemblies 
upon  the  same  model. 

§  189.  But  the  framers  of  the  Constitution  did  not  invent 
this  scheme  ;  they  had  an  example  ready  at  hand  to  imitate  ; 
they  evidently  copied  from  the  British  Parliament.  Like  that 
the  Congress,  in  its  law-making  function,  truly  represents  three 
estates.  Not  indeed  royalty,  nobility,  and  commons  ;  but  the 
President  represents  the  people  in  their  collective,  imperial  ca- 
pacity ;  the  Senate  represents  the  same  people  gathered  into 
their  local  commonwealths  ;  while  the  lower  House  represents 
the  same  people  as  divided  into  small  and  single  communities. 
Thus  we  have  all  interests  united.  The  nation,  as  one  body- 
politic,  speaks  through  the  President.  The  states,  as  separate 
political  societies,  speak  through  the  Senate ;  the  local  districts 
speak  each  through  their  own  delegates.  All  varieties  of 
opinions  and  interests  are  thus  instrumental  in  moulding  the 


SENATE  AND  HOUSE  OF  REPRESENTATIVES.    121 

national  legislation.  The  tyranny  of  majorities  is  weakened ; 
all  claims  may  be  heard  and  fairly  considered ;  and  a  policy 
suited  to  the  general  good  of  the  whole  may  be  evolved  from 
this  conflict. 

§  190.  And  here  we  see  again  involved  in  the  formation  of 
our  national  Congress,  the  two  ideas  which  were  referred  to 
in  a  former  chapter,  that  of  local  self-government,  and  that  of 
centralization,  united  and  balanced  in  such  a  manner  that 
neither  can  destroy,  but  each  may  aid  and  strengthen  the 
other.  The  provisions  of  the  Constitution  which  regulate  the 
choice  of  Senators,  and  confer  the  power  of  selection  upon  the 
state  legislatures,  and  yield  to  each  commonwealth  an  equal 
voice  in  the  upper  House,  were  the  result  of  a  spirit  of  compro- 
mise. So  tenacious  were  the  states  of  this  equality  that  an 
express  restriction  upon  the  power  of  amendment  is  inserted 
in  the  Constitution  ;  it  cannot  be  destroyed  without  an  unani- 
mous consent.1  Thus  have  we  fast  anchored  in  our  funda- 
mental law  the  principle  of  local  self-government.  While  we 
recognize  the  nation,  while  we  glory  in  our  unity,  we  have 
guarded  against  a  central  power  of  such  magnitude  as  to  en- 
danger the  liberties  of  the  citizen.  To  a  popular  branch  of  the 
legislature,  fresh  from  contact  with  small  constituencies,  fre- 
quently elected,  partaking  of  the  momentary  passions  and 
errors  of  the  people,  and  therefore  endeavoring  to  reflect  their 
immediate  wishes,  is  joined  the  more  conservative  Senate, 
fewer  in  numbers,  with  longer  duration  of  office,  appointed  by 
the  legislatures,  and  therefore  somewhat  removed  from  the 
fitful  flow  of  the  popular  will.  One  house  is  the  force  which 
drives,  the  other  the  anchor  which  holds  fast ;  one  is  the  in 
strument  of  progress,  the  other  tempers  the  vehemence  of 
advance  ;  one  communicates  speed,  the  other  steadiness.  Yet 
as  each  is  finally  responsible  to  the  people,  and  draws  its  in- 
spiration from  the  same  source,  the  Senate  is  not,  like  the 
British  House  of  Lords,  the  representative  of  class  interests 
and  of  privileged  orders.  It  does  not  interpose  itself  as  an 
obstruction  to  all  progress,  hindering  the  onward  march  by 
the  mere  force  of  passive  resistance.  It  is  conservative  be 
1  Const.  Art.  V. 


122  APPORTIONMENT   OF  MEMBERS. 

cause  it  has  the  opportunity  to  be  calmer  and  more  deliberate, 
to  look  beyond  the  present,  to  study  the  effect  of  measures 
upon  the  future. 

§  191.  When  we  turn  from  the  Senate  to  the  more  numer- 
ous and  popular  branch,  the  question  meets  us,  how  are  the 
members  to  be  apportioned  to  their  constituents  ;  according  to 
what  ratio  shall  they  be  allotted  among  the  several  states.  As 
the  principle  of  local  self-government  had  been  preserved  in 
the  organization  of  the  Senate  by  giving  each  commonwealth 
an  equality  of  representation,  so  after  some  struggle  the  prin- 
ciple of  centralization,  the  idea  of  an  empire,  triumphed  in 
constructing  the  lower  House.  All  state  equality  is  here 
abandoned,  and  the  members  are  to  represent  either  property 
or  population.  But  it  was  perceived  that  any  definite  distri- 
bution which  should  be  made  at  the  time  when  the  Constitu- 
tion was  adopted,  and  which  might  then  be  just  and  equable, 
would,  probably,  as  years  passed  by,  and  the  nation  developed 
in  resources,  become  extremely  unfair  and  one  sided.  Some 
rule  must,  therefore,  be  established  which  would  hold  good  for 
all  subsequent  generations;  by  which  the  representation  might 
be  rearranged  from  time  to  time  whenever  a  necessity  should 
require. 

§  192.  It  was  easy  to  determine  that  the  number  of  dele- 
gates given  to  each  particular  state  should  be  ascertained  by 
the  amount  of  the  population,  and  not  by  the  amount  of  prop- 
erty. It  was  therefore  provided  that  at  the  outset  each  state 
should  be  entitled  to  a  certain  definite  number  of  representa- 
tives ;  that  the  number  of  representatives  should  never  exceed 
one  for  every  thirty  thousand ;  but  that  each  state  should 
always  have  at  least  one  delegate  ;  and  that  as  the  basis  of  the 
subsequent  apportionment,  an  enumeration  of  inhabitants 
should  be  taken  within  three  years  after  the  first  meeting  of 
Congress  and  at  intervals  of  ten  years  thereafter.1 

§  193.  But  in  fixing  upon  the  exact  basis  of  apportionment 
by  means  of  this  census,  a  difficulty  presented  itself  so  great 
that  it  could  only  be  evaded  by  a  compromise.  Had  the  in- 
habitants of  the  states  been  all  freemen  no  such  difficulty  could 
i  Const.  Art.  I.  Sec.  II.  §  3. 


HOUSE   OF   REPRESENTATIVES.  123 

have  arisen ;  but  most  of  the  original  thirteen  states  contained 
a  mixed  population  of  freemen  and  slaves,  and  in  the  Southern 
States  the  latter  class  bore  a  large  proportion  to  the  former. 
Should  these  slaves  be  reckoned  as  persons  in  determining  the 
number  of  inhabitants  in  a  state  for  the  purpose  of  ascertaining 
how  many  delegates  that  state  should  send  to  the  national 
Congress  ?  On  the  one  side  it  was  urged  that  slaves  were 
property,  and  therefore  not  to  be  included  in  the  aggregate  of 
population  ;  on  the  other  hand  it  was  replied  that  slaves  were 
actual  persons,  and  were  as  much  entitled  to  be  represented 
as  women  and  minors  and  all  others  who  are  forbidden  to  ex- 
ercise political  rights.  This  contrariety  of  opinion  on  so  vital 
a  question  could  only  be  arranged  by  a  compromise,  and  it  is 
thus  that  the  Constitution  settled  the  difficulty. 

"  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  states  which  may  be  included  within  this 
Union,  according  to  their  respective  numbers,  which  shall  be 
determined  by  adding  to  the  whole  number  of  free  persons, 
including  those  bound  to  service  for  a  term  of  years,  and  ex 
eluding  Indians  not  taxed,  three  fifths  of  all  other  persons."  1 
The  term  "  free  persons  "  includes  all  inhabitants  of  every 
age,  sex,  and  color  who  are  not  in  a  condition  of  slavery,  ex- 
cept Indians  not  taxed;  "all  other  persons  "  is  the  constitu- 
tional euphemism  for  slavery. 

§  194.  During  the  continuance  of  slavery  this  rule  of  the 
Constitution  resulted  in  giving  to  the  Southern  States  a  far 
larger  representation  in  Congress  than  would  have  been  due 
simply  from  the  number  of  freemen  in  those  communities,  and 
thus  greatly  added  to  the  power  of  the  ruling  class  at  the 
South.  For  the  slaves  were,  to  all  intents  and  purposes,  prop- 
erty, made  so  by  the  state  laws,  and  no  more  appropriate  to 
be  taken  as  the  basis  of  an  apportionment,  than  the  cattle  and 
horses  of  the  Northern  farmer.  The  claim  that,  being  actual 
persons,  they  were  to  be  regarded  as  in  the  same  condition  as 
women  and  minors,  was  plainly  fallacious.  Women  and 
Tiinors,  though  having  no  political  capacities,  are  clothed  with 
all  civil  rights,  rights  for  whose  protection  governments  are 
i  Const.  Art.  I.  Sec.  III.  §  3. 


124  APPORTIONMENT   OF   MEMBERS. 

instituted.  Slaves  have  no  such  rights ;  as  members  of  the 
society  they  are  completely  swallowed  up  in  their  masters  ; 
even  the  laws  for  their  personal  safety  are  rather  enacted  in 
the  interests  of  the  masters,  to  protect  their  property.  As  the 
slaves  could  not,  under  any  supposable  circumstances,  exert 
the  slightest  influence  in  the  actual  choice  of  legislators,  the 
Southern  freeman,  while  voting  on  behalf  of  a  fraction  of  his 
slave  population,  was  just  so  far  out  voting  his  Northern  fellow- 
citizen. 

§  195.  This  preponderating  influence  may  be  increased  in 
the  future  rather  than  diminished.  An  amendment  to  the 
Constitution  has  abolished  slavery,  and  the  bondmen  have 
become  free.  There  are  now  no  more  "  other  persons  "  to 
whom  the  constitutional  provision  can  apply.  Representatives 
must  be  apportioned  equally  over  the  whole  country.  The 
same  number  of  free  citizens  in  every  part  of  the  Union  will 
now  speak  through  the  voice  of  every  delegate  to  the  national 
Congress.  This  will  immediately  increase  the  number  of 
Southern  representatives  in  the  lower  House  ;  for  the  total 
representative  population  of  a  state  will  no  longer  be  ascer- 
tained by  adding  to  the  number  of  freemen  three  fifths  of  the 
slaves,  but  by  adding  to  the  former  freemen  the  whole  of  the 
former  slaves.  This  result  will  be  unobjectionable  if  the  vast 
aggregate  of  persons  thus  suddenly  raised  into  the  status  of 
freedom  and  taken  as  the  numerical  basis  of  apportionment, 
can  have  any  actual  voice,  can  exert  any  positive  influence  in 
the  choice  of  representatives.  If  this  power  be  not  conferred 
upon  them,  the  former  governing  classes  at  the  South  will  have- 
received  an  accession  to  their  political  importance  ;  the  balance 
will  be  even  more  inclined  in  their  favor.  In  no  other  portion 
:>f  the  country  will  there  be  such  an  enormous  number  of  free 
persons,  who,  by  state  laws,  are  deprived  of  all  active  co-oper- 
ation in  the  management  of  the  government,  and  yet  who  are 
reckoned  as  persons  that  must  be  fully  represented  in  the 
Congress  of  the  nation. 

§  196.  This  result  was  probably  overlooked  at  the  time 
when  the  amendment  abolishing  slavery  was  adopted.  Va- 
rious plans  are  now  suggested  to  evade  it.     A  second  amend- 


METHOD   OF   CHOOSING   OFFICIALS.  125 

ment  is  proposed  changing  the  basis  of  representation,  and 
providing,  in  substance,  that  the  apportionment  be  made 
according  to  the  number  of  those  persons  in  each  state  who, 
by  state  laws,  are  declared  to  be  electors.  The  number  of 
delegates  in  Congress  would  then  depend  upon  the  number  of 
those  who  are  clothed  with  the  capacity  of  voting ;  and  a  state 
would  obtain  a  larger  influence  in  Congress  as  it  extended 
wider  the  electoral  franchise  among  its  inhabitants.  The 
adoption  of  such  an  amendment  would,  doubtless,  indirectly 
compel  the  several  state  governments  in  time  to  confer  the 
right  of  voting  upon  negroes.  A  second  plan  assumes  an 
amendment  either  defining  in  terms  the  qualifications  of  elec- 
tors, or  empowering  Congress  to  define  them.  These  changes 
would  affect  the  entire  country.  A  third  measure  applies 
alone  to  those  Southern  States  which  declared  themselves 
separated  from  the  Union,  and  consists  in  requiring,  as  a  con- 
dition to  a  complete  restoration  to  their  political  rights,  that 
they  should  severally  provide  in  their  fundamental  laws  for 
conferring  the  electoral  franchise  upon  negroes.  I  purpose,  in 
the  sequel,  to  offer  a  few  observations  upon  these  plans,  and 
therefore  pass  them  by,  at  present,  with  this  simple  statement. 


SECTION  III. 

METHOD    OF   CHOOSING   OFFICIAL   PERSONS. 

§  197.  General  Features.  —  A  third  element  in  the  organ 
ization  of  the  government  to  which  our  attention  should  be 
directed,  is  the  method  of  choosing  those  persons  to  whom  the 
labor  and  duty  of  administering  the  public  affairs  are  intrusted. 
When  we  examine  the  provisions  of  the  Constitution  we  are 
struck  with  the  fact  that  among  the  thousands  of  officials  who 
may  be  needed  to  carry  on  the  operations  of  the  national  gov- 
ernment, only  one  small  class  —  the  members  of  the  House 
of  Representatives  —  are  to  be  elected  directly  by  the  people. 
Amid  the  almost  universal  acceptance  of  the  modern  doctrine 
that  the  right  of  suffrage  is  an  essential  attribute  of  citizenship, 
wid  while  the  tendency  has,  for  many  years,  been  to  extend, 


126  CHOICE   OF   THE   PRESIDENT. 

and  not  to  contract  it,  this  element  in  our  organic  law  stands 
out  id  bold  contrast  to  the  practice  of  most  of  the  states  in 
the  management  of  their  domestic  concerns.  Indeed,  our 
fathers,  who  framed  and  adopted  the  Constitution,  though 
sternly  republican,  had  not  yet  conceived  the  idea  that  the 
people  were  to  interfere  directly  in  the  choice  of  all  rulers. 
Their  scheme  of  giving  effect  to  the  popular  will  was  through 
the  means  of  delegation.  The  people  were  to  speak  once  in 
the  selection  of  certain  officials  ;  and  these  representatives 
were  afterwards  to  be  the  mouth-pieces  of  their  constituents. 
This  principle  runs  through  the  whole  Constitution  ;  and  it 
was  applied  even  in  the  first  adoption,  and  in  any  subsequent 
ratification  of  amendments. 

§  198.  The  President  and  Vice-President.  — Article  II.  Sec- 
tion I.,  as  amended  in  Article  XII.  of  the  Amendments, 
provides  for  the  choice  of  President  and  Vice-President  as 
follows :  "  Each  state  shall  appoint,  in  such  manner  as  the 
legislature  thereof  may  direct,  a  number  of  electors  equal  to 
the  whole  number  of  Senators  and  Representatives  to  which 
the  state  may  be  entitled  in  the  Congress.  The  electors  shall 
meet  in  their  respective  states,  and  vote  by  ballot  for  Presi- 
dent and  Vice-President,  one  of  whom,  at  least,  shall  not  be 
an  inhabitant  of  the  same  state  with  themselves ;  they  shall 
name  in  their  ballots  the  person  voted  for  as  President,  and  in 
distinct  ballots  the  person  voted  for  as  Vice-President." 
.  .  .  [The  ballots  are  to  be  counted  by  the  President  of 
the  Senate  in  the  presence  of  the  Senate  and  House  of  Repre- 
sentatives.]       "  The  person  having  the  greatest 

number  of  votes  for  President  shall  be  the  President  if  such 
number  be  a  majority  of  the  whole  number  of  electors  ap- 
pointed ;  and  if  no  person  have  such  majority,  then  from  the 
persons  having  the  highest  numbers,  not  exceeding  three,  on 
the  list  of  those  voted  for  as  President,  the  House  of  Repre- 
sentatives shall  choose  immediately  by  ballot,  the  President. 
But  in  choosing  the  President  the  votes  shall  be  taken  by 
states,  the  representation  from  each  state  having  one  vote  ;  a 
quorum  for  this  purpose  shall  consist  of  a  member  or  members 
irom  two  thirds  of  the  states,  and  a  majority  of  all  the  states 


METHOD  OF   CHOOSING  OFFICIALS.  127 

shall  be  necessary  to  a  choice.  And  if  the  Honse  of  Repre- 
sentatives shall  not  choose  a  President  whenever  the  right  of 
choice  shall  devolve  upon  them,  before  the  fourth  day  of 
March  next  following,  then  the  Vice-President  shall  act  as 
President,  as  in  the  case  of  the  death  or  other  constitutional 
disability  of  the  President. 

"  The  person  having  the  greatest  number  of  votes  as  Vice- 
President  shall  be  the  Vice-President,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed;  and  if  no 
person  have  a  majority,  then,  from  the  two  highest  numbers 
on  the  list,  the  Senate  shall  choose  the  Vice-President ;  a 
quorum  for  the  purpose  shall  consist  of  two  thirds  of  the  whole 
number  of  Senators,  and  a  majority  of  the  whole  number  shall 
be  necessary  to  a  choice. 

"  The  Congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  give  their  votes, 
which  day  shall  be  the  same  throughout  the  United  States." 

§  199.  How  these  electors  may  be  appointed,  whether 
directly  by  the  people,  or  by  the  state  legislatures,  or  other- 
wise, the  Constitution  does  not  assume  to  determine.  It 
leaves  the  settlement  of  that  matter  entirely  to  the  several 
states.  There  need  be  no  uniformity  in  their  practice  ;  in 
fact,  until  recently  there  never  has  been.  Formerly  the 
method  of  choosing  by  the  state  legislatures  was  common. 
At  the  present  day  the  choice  is  made  by  the  body  of  voters 
in   all  the  states. 

§  200.  What  was  the  idea  contained  in  these  constitutional 
provisions  ?  Was  it  that  the  people  were  to  be  directly  in- 
strumental in  the  selection  of  their  chief  executive  officers? 
Plainly  not.  The  scheme  is  complicated,  and  seems  to  have 
been  contrived  expressly  to  prevent  what  is  often  called  the 
tyranny  of  majorities.  Even  now,  when  the  college  of  elec- 
tors is  chosen  by  the  body  of  voters,  it  is  possible  that  a  person 
shall  receive  the  ballots  of  a  large  majority  of  the  presidential 
electors,  while  a  majority  of  the  actual  voters  have  preferred 
another  candidate.  In  fact,  the  people  of  the  United  States, 
as  one  collective  aggregate,  are  not  appealed  to  in  the  selec- 
tion of  the  President,  but  that  people  as  segregated  into  their 


128  CHOICE  OF  THE  PRESIDENT. 

local  commonwealths.  The  idea  of  original  state  equality  an^ 
sovereignty  has  here  left  its  impress  upon  the  organic  law, 
When,  therefore,  we  hear,  at  the  present  day,  a  complaint 
that  a  person  may  be  the  President  of  the  minority,  it  should 
be  remembered  that  this  fact  is  the  result  of  a  concession  to 
the  demands  of  state  independence,  which  were  insisted  upon 
with  so  much  pertinacity  when  the  Constitution  was  framed 
and  adopted.  In  those  clauses  which  provide  for  an  el<  ction 
by  the  House  of  Representatives,  this  idea  of  state  sovereignty 
is  absolutely  controlling;  the  old  feature  of  state  equality  in 
the  legislature  is  expressly  preserved. 

§  201.  But  aside  from  the  influence  which  the  theory  of 
state  independence  and  sovereignty  exerted  upon  these  provi- 
sions of  the  organic  law,  the  whole  scheme  assumes  that  the 
people  were  not  to  interfere  directly  in  the  selection  of  their 
chief  executive  officers.  "  By  the  theory  of  the  Constitution, 
the  evident  intention  of  its  framers,  and  the  early  practice,  it 
was  not  designed  that  the  President  and  Vice-President  of  the 
United  States  should  be  directly  or  indirectly  voted  for  by  the 
people  in  such  a  manner  that  a  citizen,  casting  his  ballot, 
should  be  understood  as  designating  any  particular  person  for 
either  of  these  offices.  Their  choice  was  to  be  removed  from 
the  excitement  and  distractions  of  popular  elections,  and  was 
to  be  intrusted  to  the  cool  and  deliberate  judgment  of  a  few 
special  electors  appointed  for  that  purpose  by  the  several  states 
in  such  manner  as  their  laws  should  prescribe.  These  special 
electors  were  assumed  to  enter  upon  the  discharge  of  their 
functions,  untramelled  by  any  pledges,  and  left  only  to  the 
guidance  of  their  own  personal  convictions  of  what  were  the 
best  interests  of  the  country. 

§  202.  "  But  the  rapid  spread  of  the  idea  of  popular  sov- 
ereignty has  swept  away  these  checks  planned  by  the  found- 
ers of  the  government,  so  that  while  the  letter  of  the  Constitu- 
tion is  strictly  obeyed,  its  intention  is  directly  violated  in  the 
election  of  the  chief  magistrate.  This  has  been  accomplished 
by  the  abandonment  of  the  choice  of  the  electors  to  the  people 
of  the  several  states,  and  by  the  closely  drawn  lines  of  party 
discipline  ;  so  that  sets  of  electors,  unequivocally  pledged  to  a 


METHOD   OF   CHOOSING  OFFICIALS.  129 

particular  candidate,  and  directly  voted  for  by  the  people, 
have  become,  in  fact,  the  mere  passive  instruments  of  the 
majority  of  voters  in  each  state,  in  carrying  out  their  will  as 
expressed  at  the  ballot-box.  The  electoral  college  is  thus 
reduced  to  a  mere  machine,  a  mere  conduit  through  which 
may  flow  the  stream  of  popular  suffrage.  We  do  now,  in  fact, 
vote  for  the  President  and  Vice-President  as  really  as  though 
their  names  were  inscribed  upon  the  papers  we  deposit.  We 
have  thus,  in  this  respect,  virtually  made  to  ourselves  a  new 
constitution,  which  exactly  resembles  the  original  in  form,  but 
is  vastly  different  in  substance.  This  complete  change  in  the 
manner  of  electing  the  President  is  a  remarkable  instance  of 
the  way  in  which  written  laws  and  constitutions,  however 
carefully  guarded,  may  be  made  to  yield  to  a  change  in  the 
popular  feelings  and  wishes ;  so  that,  while  not  a  clause  is 
repealed  or  modified,  the  effect  of  the  whole  is  entirely  trans- 
formed. On  the  letter  of  the  Constitution  there  has  orown 
up  an  unwritten  law,  not,  indeed,  enacted  by  courts,  but 
devised  and  voluntarily  obeyed  by  those  who  manage  the 
machinery  of  popular  elections.1 

§  203.  I  would  not  return  to  the  ancient  theory.  I  am 
persuaded  that  our  fathers  had  not  faith  enough  in  the  intel- 
ligence of  the  people.  I  believe  that  the  whole  body  of  voters 
is  less  liable  to  err  in  the  choice  of  those  rulers  whose  functions 
are  political,  than  any  small  and  select  number  of  men  specially 
appointed,  however  pure  and  patriotic  they  may  be.  I  believe 
that  our  general  elections  fairly  express  the  popular  will,  and 
that  the  decision  is,  on  the  whole,  in  accordance  wTith  the  best 
interests  of  the  nation.  We  might  well,  therefore,  abandon 
the  idle  and  useless  form  of  interposing  the  machinery  of  an 
electoral  college  between  the  people  and  their  choice,  and 
allow  the  votes  to  be  cast  directly  for  the  persons  designated 
to  the  offices  of  President  and  Vice-President.  I  have  called 
this  form  idle  and  useless ;  it  certainly  is  so,  unless  it  be  pur- 
posely retained  as  a  check  upon  the  power  of  a  majority.  If 
it  be  thought  best  that  a  majority  of  voters  in  the  United  States 
should  not  necessarily  determine  the  selection  of  President, 

1  See  Pomeroy's  Introduction  to  Municipal  Law,  §  73 J 
9 


130  CHOICE   OF   SENATORS. 

then  this  expedient  of  an  electoral  college  is  well  contrived  to 
thwart  the  wishes  of  such  majority.  But  all  this  is  entirely 
opposed  to  the  tendencies  of  the  age,  and  to  the  principles  upon 
which  the  state  governments  are  organized  and  administered. 

There  are  theorists  who  have  suggested  plans  by  which  minor- 
ities may  be  the  more  efficiently  represented;  but  no  one  has, 
as  yet,  contended  that,  in  a  republican  form  of  government, 
the  minority  should  possibly  control. 

§  204.  The  Senate.  —  Article  I.  Section  III.  provides  that 
"  the  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  state,  chosen  by  the  legislature  thereof,  for 
six  years  ;  and  each  Senator  shall  have  one  vote." 

Provision  is  made  for  classifying  those  who  are  first  chosen, 
so  that  the  terms  of  office  of  one  third  shall  expire  every  sec- 
ond year.  "  If  vacancies  happen  by  resignation  or  otherwise, 
during  the  recess  of  the  legislature  of  any  state,  the  executive 
thereof  may  make  temporary  appointments,  until  the  next 
meeting  of  the  legislature,  which  shall  then  fill  such  vacan- 
cies." 

The  same  Article,  Section  IV.,  declares  that,  "  the  times, 
places,  and  manner  of  holding  elections  for  Senators  and  Rep- 
resentatives, shall  be  prescribed  in  each  state  by  the  legisla- 
ture thereof;  but  the  Congress  may  at  any  time,  by  law, 
make  or  alter  such  regulations,  except  as  to  the  places  of 
choosing  Senators." 

The  body  which  appoints  the  Senators  is  fixed  beyond  the 
reach  of  Congress  or  state  legislation,  —  the  legislatures  of  the 
respective  states.  The  places  of  choosing  are  also  fixed,  —  the 
place  where  each  legislature,  by  the  local  law,  is  to  hold  its 
sessions.  The  times  and  manner  of  holding  elections  are  left  to 
the  states,  unless  Congress  should,  by  a  general  law,  prescribe 
some  common  rule.  Congress  has  not  availed  itself  of  this 
power  so  plainly  conferred  upon  it  by  the  Constitution,  and 
there  is  some  diversity  in  the  manner  of  choosing  Senators 
among  the  different  states.  In  some  the  two  houses  meet  in 
joint  session,  and  a  majority  of  the  whole  united  body  is  suf- 
ficient ;  in  others  the  houses  vote  separately,  and  do  not  meet 
in  joint  session  until  a  majority  of  each  has  made  its  selection* 


METHOD   OF   CHOOSING  OFFICIALS.  131 

and  then  if  the  choice  of  both  branches  has  fallen  upon  the 
same  person  the  election  is  complete,  if  not,  a  resort  is  had  to 
a  joint  ballot. 

§  205.  Tlie  House  of  Representatives.  —  The  Constitution 
determines  the  method  of  electing  members  to  the  lower 
House  in  the  following  manner  :  —  Article  I.  Section  II.  §  1, 
"  The  House  of  Representatives  shall  be  composed  of  mem- 
bers chosen  every  second  year  by  the  people  of  the  several 
states,  and  the  electors  in  each  state  shall  have  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous  branch  of  the 
state  legislature." 

The  first  paragraph  of  Section  IV.  of  the  same  Article,  cited 
in  §  204,  applies  to  the  election  of  Representatives  as  well  as 
of  Senators. 

In  this  connection  may  be  read  Section  IV.  of  Article  IV. 
as  follows :  "  The  United  States  shall  guarantee  to  every  state 
in  this  Union  a  republican  form  of  government." 

§  206.  As  to  the  times,  places,  and  manner  of  holding  elec- 
tions of  Representatives,  the  Congress  has  complete  control, 
so  far  as  positive  provisions  of  the  Constitution  do  not  inter- 
fere ;  in  the  event  that  Congress  does  not  exercise  its  author- 
itv,  the  states  have  a  like  complete  control.  Thus  Congress 
may  prescribe  the  day  and  month  for  holding  the  election,  and 
make  them  the  same  throughout  the  country,  with  the  limita- 
tion that  the  election  must  be  once  in  two  years.  Congress 
may  also  prescribe  whether  the  choice  shall  be  by  single  dis- 
tricts, or  by  a  general  vote  in  each  state ;  and  may,  no  doubt, 
divide  the  states  into  congressional  districts.  The  national 
legislature  has  not,  however,  exercised  the  full  power  con- 
ferred upon  it,  and  most  of  the  regulations  governing  the 
choice  of  Representatives  have  been  left  to  the  separate  states. 
Over  the  qualifications  of  the  electors,  Congress  has  no  control 
further  than  may  be  included  in  the  clause  by  which  the  United 
States  is  to  guarantee  a  republican  form  of  government  to  each 
state. 

§  207.  Here  we  perceive  that  the  general  government  has 
no  voice  in  deciding  who  shall  be  privileged  to  vote  for  Rep- 
resentatives in  Congress.     The  whole  subject  is  controlled  by 


132  REPRESENTATIVES   IX  CONGRESS. 

state  laws.  The  states  will,  of  course,  in  their  own  constitu- 
tions or  statutes,  declare  which  of  their  inhabitants  may  take 
a  part  in  choosing  members  of  the  popular  branch  of  their 
local  legislatures,  and  such  persons  are  entitled  also  to  vote 
for  congressmen  in  that  state. 

We  are  thus  met  by  this  peculiarity  of  the  organic  law,  that 
it  nowhere  attempts  to  define  what  persons  may  exercise  the 
right  of  suffrage,  nor  does  it  confer  upon  the  general  govern- 
ment any  such  power.  In  the  only  instance  where  provision 
is  made  for  a  popular  election,  the  states  are  left  to  designate 
the  individuals  who  may  unite  in  electing. 

§  208.  This  fact  is  a  complete  answer  to  the  somewhat  com- 
mon notion  that  United  States  citizenship  implies  the  right  of 
votino-.  Nothing  can  be  further  from  the  truth.  Not  a  vote 
is  cast,  from  one  end  of  the  country  to  the  other,  by  any  per- 
son in  virtue  merely  of  his  being  a  citizen  of  the  United  States. 
The  Constitution  recognizes  the  status  of  citizenship,  and  pro- 
vides for  admitting  foreigners  to  that  condition  ;  but  it  does 
not  create  any  class  of  voters.  What  the  several  states  may 
do  in  this  respect,  is  a  matter  entirely  for  their  own  consider- 
ation. It  is  true,  as  a  fact,  that,  by  the  state  laws,  the  great 
mass  of  voters  for  Representatives  in  Congress  are  white  male 
citizens  of  the  United  States,  who  have  attained  the  age  of 
twenty-one  ;  but  there  is  no  necessity  in  the  Constitution  for 
this  practice.  A  state  may  deny  to  some  citizens  the  right  of 
suffrage  entirely,  as  most  do  to  the  free  negro,  and  all  do  to 
women  and  minors  ;  or  may  deny  it  to  persons  of  foreign  birth 
for  a  certain  period  after  naturalization,  as  does  New  York. 
Others  still  may  confer  the  privilege  upon  persons  who  are 
not  citizens  of  the  United  States,  as  do  a  few  of  the  Western 
states. 

§  209.  It  is  plain,  therefore,  that  mere  citizenship  of  the 
United  States  does  not  involve  the  right  of  suffrage.  It  is  also 
plain  that  the  United  States  have  no  power  or  authority  to 
interfere  with  the  discretion  of  the  states  in  determining  what 
class  of  persons  possess  the  "  qualifications  "  for  electors.  The 
state  laws  may  throw  open  the  door  as  wide  as  possible,  oi 
may  place  any  limitation  which  is  not  inconsistent  with  a  re- 


METHOD   OF   CHOOSING   OFFICIALS.  133 

publican  form  of  government.  In  some,  a  property  qualifica- 
tion has  been  demanded  from  the  voter,  and  this  practice  was 
almost  universal  in  the  earlier  years  of  our  government ;  in  a 
few,  a  literary  or  educational  qualification  is  required.  In  a 
small  number  of  commonwealths,  free  negroes  are  admitted  on 
an  equality  with  whites  ;  in  others,  only  those  who  possess  a 
certain  amount  of  property  ;  while  in  most  they  are  rejected 
altogether.1 

§  210.  Notwithstanding  the  control  over  this  subject  which 
the  Constitution  gives  to  the  states  is  so  great,  so  nearly  abso- 
lute, it  is  limited  by  Art.  IV.  Sec.  IV.  which  says  that  the 
United  States  shall  guarantee  to  every  state  a  republican  form 
of  government.  It  seems  to  be  evident  that  a  state,  under 
pretence  of  prescribing  qualifications  for  electors,  might  place 
the  governmental  power  in  the  hands  of  an  oligarchy,  and 
might  erect  such  a  political  fabric  as  was  in  no  respect  repub- 
lican in  form.  Should  this  be  done.  Congress  might  undoubt- 
edly interfere  in  that  particular  state,  and  restore  a  republican 
form.  But  to  say  that  Congress  may  decide  by  a  general  rule 
what  regulations  o-overnino-  the  status  of  electors  are  consistent 

O  O  O 

with  the  existence  of  a  republican  form  of  government,  and 
may  pass  laws  imposing  those  regulations  upon  the  several 
states,  is  to  ignore  and  destroy  not  only  the  spirit,  but  the  very 
letter  of  the  organic  law.  To  say  that  a  republican  form  of 
government  implies  universal  suffrage,  or  that  it  forbids  the 
imposition  of  qualifications  which  do  not  directly  affect  the 
voter's  capacity  to  judge  properly  o^  his  political  act  of  voting, 
is  to  violate  all  the  fundamental  rules  of  interpretation,  to  blot 
out  all  history,  to  declare  that  even  the  government  of  the 
United  States  is  not  republican.  The  plain  common  sense 
view  which  the  people  have  always  taken  of  these  provisions 
is  the  correct  one.  The  clause  "  the  electors  in  each  state 
shall  have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  state  legislature  "  has  been  uniformly 

1  I  hardly  need  say  that  I  am  speaking  here  of  those  states  alone  which 
-emained  true  to  the  Union,  and  which  have  voluntarily  acted  upon  the 
question  of  suffrage ;  I  do  not  include  those  states  which  attempted  to  se- 
«ede,  and  upon  which  Congress  is  now  imposing  universal  suffrage. 


134  AMENDMENT   SUGGESTED. 

construes  1  to  mean  that  the  states  may  deride  who  of  their  in- 
habitants shall  vote  ;  and  it  lias  been  left  to  the  good  sense  of 
the  people  of  each  commonwealth  to  enlarge  the  class  of  voters 
from  time  to  time  as  the  ideas  of  popular  sovereignty  obtained 
more  power. 

§  211.  It  is  certainly,  however,  an  anomaly  that  the  general 
government  of  the  United  States  should  have  no  control  over 
the  choice  of  its  own  delegates  in  Congress;  that  it  should  be 
powerless  to  define  the  qualifications  of  congressional  electors. 
It  must  be  conceded  that  this  is  a  defect  in  our  organic  law 
which  needs  amendment;  it  was  an  unnecessary  and  unfor- 
tunate concession  to  the  theory  of  state  sovereignty  and 
independence.  One  code  of  rules  should  certainly  prevail 
throughout  the  country  to  regulate  the  choice  of  representa- 
tives, and  this  should  be  the  work  of  Congress,  or  of  the  people 
in  its  sovereign  capacity.  The  nation  should  dictate  in  the 
selection  of  its  own  legislators.  The  integrity  of  the  separate 
states  is  sufficiently  guarded  by  allowing  to  each  an  equal  voice 
in  the  Senate,  and  by  permitting  them  to  appoint  Senators, 
and  to  control  the  selection  of  Presidential  electors  ;  the  more 
national  branch  of  Congress,  that  which  comes  directly  from 
the  people,  should  be  entirely  under  the  management  of  the  one 
body  politic  which  is  represented  in  the  general  government. 

§  212.  Here  I  wish  to  offer  a  few  considerations  upon  the 
curious  result  of  the  amendment  abolishing  slavery  referred  to 
in  §§  195,  196,  and  upon  the  second  amendment  proposed  to 
obviate  that  result.  This  latter  amendment  which  has  passed 
both  hous'  s  of  Congress,  and  been  ratified  by  several  state 
legislatures,  is  as  follows:  Art.  XIV.  Sec.  II.  "  Representa- 
tives shall  be  apportioned  among  the  several  states  according 
to  their  respective  numbers,  counting  the  whole  number  of 
Dersons  in  each  state,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice-President  of  the  United  States,  represen- 
tatives in  Congress,  the  executive  and  judicial  officers  of  a 
state,  or  the  members  of  the  legislature  thereof,  is  denied  to 
any  of  the  male  inhabitants  of  such  state,  being  twenty-one 
years  of  age,  and  citizens  of  the  United  States,  or  in  any  way 


METHOD   OF   CHOOSING   OFFICIALS.  135 

abridged,  except  for  participation  in  rebellion  or  other  crime, 
the  basis  of  representation  therein  shall  be  reduced  in  the  pro- 
portion which  the  number  of  such  male  citizens  shall  bear  to 
the  whole  number  of  male  citizens  twenty-one  years  of  age  in 
such  state." 

There  can  be  no  doubt  that  the  amendment,  when  adopted, 
would  have  the  effect  to  extend  the  right  of  suffrage  to  the 
class  of  new-made  citizens  in  the  Southern  states,  and  to  free 
negroes  in  other  states,  and  thus  to  increase  the  number  of 
voters  for  delegates  to  Congress,  by  making  it  directly  for  the 
interest  of  the  states  to  admit  the  same  class  of  citizens  to  vote 
for  members  of  the  popular  branch  of  their  own  local  legisla- 
tures, and  for  other  state  officers. 

§  213.  While  this  plan  would,  therefore,  tend  to  accomplish 
the  object  designed,  it  would  do  so  by  a  violation  of  ideas  and 
principles  which  are  wrought  into  the  very  fibre  of  our  govern- 
ment. In  regard  to  matters  purely  local,  and  which  do  not 
and  cannot  have  a  national  aspect  or  influence,  it  has  been  the 
policy  of  the  United  States  not  to  interfere  with  the  separate 
states.  The  Constitution  was  framed  upon  this  idea.  The 
people,  as  the  source  of  all  power,  gave  to  their  central  gov- 
ernment exclusive  control  over  all  subjects  which  are  national 
and  imperial,  and  to  the  separate  states  a  control  over  all  sub- 
jects which  are  local.  I  deem  this  policy  as  essential  as  is  its 
counterpart,  that  the  several  states  shall  not  interfere  with  the 
nation  in  the  administration  of  its  appropriate  functions.  Now 
the  determining  who  may  vote  for  members  of  the  state  legis- 
latures, and  for  other  state  officers,  is  a  matter  peculiarly  local, 
and  the  United  States  should  not  be  able,  either  directly  or 
indirectly,  to  dictate  rules  thereon  to  the  various  common- 
wealths. But,  on  the  other  hand,  the  determining  who  may 
vote  for  Representatives  in  Congress  is  a  matter  purely  na- 
tional, and  the  several  states  should  not  be  permitted  to  dictate 
rules  thereon  to  the  general  government. 

§  214.  A  remedy,  therefore,  should  be  proposed,  which 
would  not  interfere  with  functions  strictly  belonging  to  the 
states,  but  would  restore  to  its  own  control  functions  that  of 
right   belong   to    the   nation.     Such   a  remedy  would  be   an 


136  AMENDMENT   SUGGESTED. 

amendment,  not  of  the  clause  apportioning  representatives,  but 
of  the  clause  relating  to  the  qualifications  of  congressional  elec- 
tors. An  idea  might  be  borrowed  from  the  seceding  states 
themselves  and  extended  to  its  legitimate  results.  When  the 
constitution  of  the  so-called  Confederacy  was  formed,  the  con- 
vention perceived  the  impropriety  of  permitting  the  states  to 
have  complete  power  over  the  choice  of  congressmen,  and 
although  their  revolt  was  based  upon  an  assumed  existence  of 
separate  state  sovereignty,  they  imposed  restrictions  upon  the 
discretion  of  the  several  commonwealths  in  the  matter  of  de- 
termining who  may  exercise  the  right  of  suffrage.1  In  this 
single  instance  their  example  is  worthy  of  imitation  ;  but  I 
would  go  further  and  take  away  the  discretion  altogether. 

§  215.  The  amendment  suggested  is  to  Art.  I.  Sec.  II.  § 
1,  of  the  Constitution,  so  that  it  should  read  substantially  as 
follows :  "  The  House  of  Representatives  shall  be  composed 
of  members  chosen  every  second  year  by  the  people  of  the 
several  states,  and  the  electors  shall  have  the  qualifications 
which  Congress  may  from  time  to  time  prescribe,  and  which 
shall  be  uniform  throughout  all  the  states."  The  clause  in 
regard  to  apportionment  may  be  left  as  it  now  stands. 

Thus  should  we  remedy  any  unequal  consequences  of  the 
amendment  abolishing  slavery  ;  Congress  might  extend  the 
right  of  suffrage  among  all  free  persons ;  and  at  the  same  time 
purely  state  functions  would  not  be  interfered  with,  while  a 
symmetry  would  be  given  to  the  organic  law,  which,  it  must 
be  confessed,  is  now  lacking. 

§  216.  Other  Officers.  —  All  other  officers  are  appointed  by 
the  President  with  the  advice  and  consent  of  the  Senate,  or  by 
the  President  alone,  or  by  the  Heads  of  Departments,  or  by 
Courts  of  Law,  (Art.  II.  Sec.  II.  §  2),  with  the  exception  of 
the  Speaker  and  other  officers  of  the  House,  and  the  Presi- 
dent pro  tempore  and  other  officers  of  the  Senate,  which  are 
chosen  by  those  bodies,  respectively.  (Art.  I.  Sec.  II.  §  5, 
Sec.  III.  §  5.) 

1  See  Appleton's  Ann.  Am.  Cycl.  for  1861,  p.  158.  The  article  in  question 
restrains  the  several  states  from  allowing  persons  of  foreign  birth  and  not 
citizens  of  the  Confederate  States,  to  vote  for  any  officer,  civil  or  political 
state  or  federal. 


QUALIFICATIONS   OF   OFFICIAL  PERSONS.  137 


SECTION    IV. 

30ME  RULES  RESPECTING  THE  QUALIFICATIONS  OF  OFFICERS  AND 
THE  ORGANIZATION  OF  THE  HOUSES  OF  CONGRESS  AND  THE 
CONDUCT    OF    BUSINESS    THEREBY. 

§  217.  There  are  certain  precise  and  detailed  rules  respect- 
ing the  qualifications  of  officers,  and  the  organization  of  the 
houses  of  Congress,  and  the  conduct  of  business  thereby,  which 
do  not  need  amplification  or  comment,  but  may  be  arranged  in 
order  substantially  in  the  terms  used  by  the  Constitution  itself. 

1.  Qualifications  in  respect  to  Age,  Citizenship,  and  Inhabitancy. 

The  President  and  Vice-President  must  be  natural-born 
citizens,  at  least  thirty-five  years  of  age.  Art.  II.  Sec.  I.  §  5  ; 
Art.  XII.  of  the  Amendments,  §  3. 

Senators  must  be  at  least  thirty  years  of  age  ;  if  of  foreign 
birth  and  naturalized,  must  have  been  citizens  for  at  least 
nine  years ;  and  must  when  elected  be  inhabitants  of  the 
state  from  which  they  are  elected.     Art.  I.  Sec.  III.  §  3. 

Representatives  must  be  at  least  twenty-five  years  of  age  ; 
if  of  foreign  birth  and  naturalized,  must  have  been  citizens 
for  at  least  seven  years ;  and  must  when  elected  be  inhab- 
itants of  the  state  from  which  they  are  elected.  It  is  not  re- 
quired that  they  should  be  inhabitants  of  the  district  from 
which  they  are  chosen.     Art.  I.  Sec.  II.  \  2. 

2.   Terms  of  Office. 

The  President  and  Vice-President,  four  years.  Art.  II. 
Sec.  I.  §  1. 

Senators,  six  years.     Art.  I.  Sec.  III.  §  1. 

Representatives,  two  years.     Art.  I.  Sec.  II.  §  1. 

§  218.  Certain  regulations  respecting  the  organization  of 
Congress,  and  of  each  House. 

There  are  a  few  special  rules  which  apply  to  the  Congress 
as  a  legislative  body;  others  apply  to  each  house  by  itself; 
und  others  still  to  the  members  of  each  house  individually. 

The  Congress,  as  such,  shall  assemble  at  least  once  in  every 


138  ORGANIZATION  OF  CONGRESS. 

year,  and  the  day  of  meeting  shall  be  the  first  Monday  in 
December,  unless  they  shall,  by  law,  appoint  a  different  day. 
Art.  I.  Sec.  IV.  §  2. 

Under  this  provision  Congress  may  appoint  two  or  more 
sessions  for  one  year,  and  may  set  any  day  for  the  commence- 
ment of  such  sessions. 

§  219.  Mules  applicable  to  each  House  separately.  —  In  re- 
spect to  the  matters  involved  in  these  rules  each  house  acts 
independently  of  the  other,  and  these  acts  are  not  laws  in  any 
true  sense  of  the  term.  It  may  be  doubted  whether  Congress 
could,  by  any  law,  bind  either  house  in  regard  to  these  sub- 
jects which  are  thus  committed  to  the  discretion  of  each  branch 
of  the  legislature. 

Each  house  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members.  A  majority  of  each  shall 
be  a  quorum  to  do  business  ;  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  may  compel  the  attendance  of  absent 
members.     See  Art.  I.  Sec.  V.  §  1. 

The  power  given  to  the  Senate  and  to  the  House  of  Repre- 
sentatives, each  to  pass  upon  the  validity  of  the  elections  of 
its  own  members,  and  upon  their  personal  qualifications,  seems 
to  be  unbounded.  But  I  am  very  strongly  of  the  opinion  that 
the  two  houses  together,  as  one  Congress,  cannot  pass  any 
statute  containing  a  general  rule  by  which  the  qualifications 
of  members  as  described  in  the  Constitution,  are  either  added 
to  or  lessened.  Such  a  statute  would  not  seem  to  be  a  judg- 
ment of  each  house  upon  the  qualifications  of  its  own  members, 
but  a  judgment  upon  the  qualifications  of  the  members  of  the 
other  branch.  The  power  is  sufficiently  broad  as  it  stands  ; 
indeed  there  is  absolutely  no  restraint  upon  its  exercise  except 
the  responsibility  of  representatives  to  their  constituents.  Un- 
der it  the  House  inquires  into  the  validity  of  elections,  going 
behind  the  certificate  of  returning  officers,  examining  witnesses, 
and  deciding  whether  the  sitting  member  or  the  contestant 
received  a  majority  of  legal  votes.  The  House  has  also  applied 
the  test  of  personal  loyalty  to  those  claiming  to  be  duly  elected 
representatives,  deeming  this  one  of  the  qualifications  of  which 
it  might  judge.     The  Senate  has  also  passed  upon  the  valid 


POWERS  OF  EACH  HOUSE.  139 

ity  of  the  election  of  a  Senator  by  the  legislature  of  his  state, 
determining  whether  the  choice  had  been  made  in  accordance 
with  the  state  law.  This  body  has  also  inquired  into  the  loyalty 
of  a  member,  and  has  expelled  Senators  for  alleged  treasonable 
or  seditious  practices. 

§  220.  Each  house  may  determine  the  rules  of  its  proceed- 
ings, punish  its  members  for  disorderly  behavior,  and  with  the 
concurrence  of  two  thirds  expel  a  member.  Art.  I.  Sec. 
III.  §  2. 

Under  these  provisions  each  house  has  the  entire  control 
over  its  own  parliamentary  proceedings,  its  methods  of  doing 
business,  its  rules  of  order,  the  observance  of  order  on  its  floor, 
and  the  conduct  of  its  members.  The  powTer  of  expulsion  is 
unlimited,  and  the  judgment  of  the  two  thirds  majority  is  final. 

§  221.  Each  house  shall  keep  a  journal  of  its  proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such  parts  as 
may,  in  their  judgment,  require  secrecy  ;  and  the  yeas  and  nays 
of  the  members  of  either  house  on  any  question  shall,  at  the 
desire  of  one  fifth  of  those  present,  be  entered  on  the  journal. 
Neither  house,  during  the  session  of  Congress,  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days,  nor 
to  any  other  place  than  that  in  which  the  two  houses  shall  be 
sitting. 

Neither  of  these  provisions  requires  any  remark,  except  that 
giving  one  fifth  of  the  members  present  the  power  to  demand 
that  the  yeas  and  nays  on  any  question  shall  be  entered  on  the 
journal.  This  regulation,  simple  in  itself,  is  most  important 
and  salutary.  It  is  a  safeguard  against  the  acts  of  a  reckless 
or  corrupt  majority.  By  placing  in  the  hands  of  so  small  a 
minority  the  power  to  demand  the  yeas  and  nays,  and  to  make 
a  lasting  record  of  all  votes,  which  shall  go  before  the  people, 
it  keeps  each  member  alive  to  his  personal  responsibility  to  his 
constituents,  and  effectually  prevents  all  subsequent  conceal- 
ment as  to  acts  for  which  he  may  be  called  in  question. 

§  222.  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives  k  but  the  Senate  may  propose,  or 
concur  with  amendments,  as  on  other  bills.  Art.  I.  Sec. 
VII.  §  1. 


140  PRIVILEGES   OF  MEMBERS. 

This  provision  is  substantially  copied  from  the  British  Con- 
stitution. No  principle  is  more  firmly  settled  in  the  adminis- 
tration of  the  British  government,  than  the  doctrine  that  the 
Commons  hold  the  purse.  This  power  of  the  House  of  Com- 
mons to  grant  or  withhold  supplies  has  been  contended  for 
during  centuries  of  conflict ;  it  has  been  the  instrument  of 
success  in  every  contest  with  the  royal  prerogative ;  it  has 
finally  raised  the  Commons  to  a  position  of  absolute  suprem- 
acy above  all  other  departments  of  the  government.  And 
yet  there  does  not  seem  to  be  any  good  reason  for  importing 
it  into  our  Constitution.  The  whole  frame  of  our  government, 
the  whole  state  of  our  society  is  so  different  from  that  of  Eng- 
land, that  there  is  no  class  distinction,  no  permanent  conflict 
of  interest  between  the  House  of  Representatives  and  the 
Senate  ;  there  is  no  reason  why  the  lower  house  should  be 
more  careful  of  the  public  moneys,  and  more  economical  in 
the  public  expenditures  than  the  Senate.  The  constituents 
which  both  represent  are  finally  the  same,  and  together  bear 
the  burdens  of  taxation.  I  believe  the  opinion  is  becoming 
general  that  the  provision  in  question  is  not  only  useless,  but 
is  an  absolute  hindrance  in  the  course  of  legislation. 

§  223.  Rules  applicable  to  the  members  of  the  two  Houses 
individually.  —  The  Senators  and  Representatives  shall  receive 
a  compensation  for  their  services,  to  be  ascertained  by  law, 
and  paid  out  of  the  Treasury  of  the  United  States.  They 
shall,  in  all  cases  except  treason,  felony,  and  breach  of  the 
peace,  be  privileged  from  arrest  during  their  attendance  at  the 
session  of  their  respective  houses,  and  in  going  to  and  return- 
ing from  the  same ;  and  for  any  speech  or  debate  in  either 
house,  they  shall  not  be  questioned  in  any  other  place.  Art. 
I.  Sec.  VI.  §  1. 

The  privilege  from  arrest,  and  from  being  questioned  in  any 
other  place  for  any  speech  or  debate,  has  ever  been  considered 
indispensable  to  a  free  representative  government.  These  pro- 
visions in  our  Constitution  are  substantially  the  same  as  those 
of  the.  English  law. 

§  224.  No  Senator  or  Representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  civil  office  under 


ORGANIZATION   OF   CONGRESS.  141 

the  authority  of  the  United  States,  which  shall  have  been 
created,  or  the  emoluments  whereof  shall  have  been  increased 
during  such  time  ;  and  no  person  holding  any  office  under  the 
United  States  shall  be  a  member  of  either  house  during  his 
continuance  in  office.     Art.  I.  Sec.  VI.  §  2. 

The  latter  of  these  clauses  is  in  striking  contrast  with  the 
law  and  practice  in  England.  As  Parliament  is  organized  the 
principal  administrative  officers  must  be  members  of  one  or  the 
other  house. 


CHAPTER   III. 

GENERAL    LIMITATIONS    UPON    THE    POWERS    OF    THE    UNITED 
STATES    GOVERNMENT. 

§  225.  Thus  far,  in  the  course  of  this  work,  I  have  endeavored 
to  explain  what  the  Constitution  is,  and  who  were  its  authors  ; 
then  passing  from  this  general  survey  to  the  instrument  itself, 
have  exhibited  the  fundamental  ideas  upon  which  the  govern- 
ment of  the  United  States  is  based,  and  described  its  outward 
form  and  structure.  We  now  proceed  to  consider  its  powers. 
In  explaining  and  illustrating  the  positive  powers  which  are 
conferred  by  affirmative  language  of  the  Constitution,  the 
natural  order  requires  us  to  take  up  separately  the  Legislative, 
the  Executive,  and  the  Judicial.  But  before  commencing  this 
special  investigation,  there  are  some  considei*ations  to  be  sub- 
mitted which  affect  the  whole  government,  which  apply  to  all 
departments  alike. 

§  226.  As  has  already  been  stated  more  than  once,  the  gov- 
ernment of  the  United  States  is  one  of  limited  powers.  The 
people  have  not  committed  to  it  their  own  complete  functions 
of  legislation  and  administration.  One  portion  they  have  re- 
tained dormant  in  their  own  hands ;  special  capacities  and 
attributes  they  have  conferred  upon  the  national  government ; 
the  residue  they  have  intrusted  to  the  separate  states.  In 
order  to  confine  their  immediate  agents  within  the  proper 
bounds,  the  people  have  inserted  in  the  organic  law  various 
restrictions,  stated  with  the  utmost  care,  so  that  the  rights  of 
the  individual  shall  be  guarded  from  the  encroachments  of 
power. 

Let  us  now  direct  our  attention  to  the  limitations  upon  the 
governmental  power ;  let  us  endeavor  to  ascertain  their  nature, 
and  the  extent  of  their  negative  influence. 


EXPEESS  LIMITATIONS.  143 

They  are  of  two  classes.  1st.  Those  which  are  expressed 
in  the  Constitution  in  positive  terms  ;  and  2d.  Those  which 
are  implied  from  the  general  nature  of  the  government,  and 
the  design  of  the  instrument  by  which  that  government  is 
created. 

SECTION  I. 

EXPRESS   LIMITATIONS    UPON   THE   WHOLE    GOVERNMENT. 

§  227.  We  are  to  examine  those  restraints  and  limitations 
which  are  imposed  upon  the  general  government  and  are  em- 
bodied in  express  negative  language  of  the  Constitution.  An 
examination  of  the  various  provisions  of  the  organic  law  will 
disclose  the  fact  that  most  of  these  express  negative  clauses 
apply  with  equal  force  to  the  Legislature,  the  Executive,  and 
the  Judiciary.  Some,  however,  are  confined  in  their  opera- 
tion to  a  single  one  of  these  departments,  generally  to  Congress. 
These  latter  will  be  passed  by  for  the  present,  and  will  be 
examined  in  those  subsequent  chapters  which  treat  of  the 
legislative,  administrative,  or  judicial  functions. 

General  Statement  and  Nature  of  these  Limitations. 

§  228.  The  Constitution,  as  proposed  by  the  convention  and 
adopted  by  the  people,  contained  almost  none  of  the  express, 
general,  negative  provisions  which  impose  a  limit  upon  the 
entire  functions  of  the  government.  This  omission  of  a  Bill 
of  Rights  was  made  one  of  the  strongest  grounds  of  objection 
to  that  instrument  during  the  canvas  which  preceded  its  final 
ratification.  To  meet  this  objection,  it  was  urged  by  the 
authors  of  "  The  Federalist  "  and  others,  that  our  whole  Con- 
stitution was  in  itself  a  Bill  of  Rights :  that  no  arguments 
drawn  from  English  history  would  apply  to  our  condition  ;  that 
while  the  Parliament  of  Great  Britain  could  do  every  thing, 
our  own  government  had  only  those  attributes  which  were 
granted  to  it ;  and  that  a  denial  of  express  powers  not  formally 
conferred,  would  be  idle  and  absurd.  These  arguments,  how- 
ever, did   not    carry   conviction,   and   immediately  after   the 


144  THE   BILL   OF   RIGHTS. 

assembling  of  the  new  Congress,  amendments  were  proposed 
and  speedily  ratified,  which  consist  in  a  series  of  negations  of 
any  assumed  power  to  perform  certain  enumerated  acts.  These 
express  denials  of  the  existence  of  certain  attributes  in  the 
general  government,  constitute  our  national  bill  of  rights,  and 
apply  to  each  department,  and  to  all  classes  of  officials.  They 
are  contained  in  the  first  eight  articles  of  the  amendments. 

§  220.  The  following  is  the  substance  of  these  important 
restraints. 

No  form  of  religion  shall  be  established,  nor  shall  the  free 
exercise  of  religion  be  prohibited.  The  freedom  of  the  press 
or  of  speech  shall  not  be  abridged.  The  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  government  shall 
not  be  curtailed.     Art.  I. 

The  right  of  the  people  to  bear  and  keep  arms  shall  not  be 
infringed.     Art.  II. 

Soldiers  shall  not,  in  time  of  peace,  be  quartered  in  houses 
without  the  consent  of  the  owners,  nor  in  time  of  war,  except 
in  the  manner  prescribed  by  law.     Art.  III. 

Unreasonable  searches  and  seizures  of  persons,  houses, 
papers,  and  effects  are  forbidden.  No  warrant  shall  be  issued 
except  upon  probable  cause,  supported  by  oath,  and  particu- 
larly describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized.     Art.  IV. 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia  when  in  actual  service  in  time  of  war  or 
public  danger.  No  person  shall  be  subject,  for  the  same  offence, 
to  be  put  twice  in  jeopardy  of  life  or  limb ;  nor  shall  be  com- 
pelled, in  any  criminal  case,  to  be  a  witness  against  himself; 
nor  be  deprived  of  life,  liberty,  or  property,  without  due  pro- 
cess of  law  ;  nor  shall  private  property  be  taken  for  public  use 
without  just  compensation.     Art.  V. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
of  a  speedy  and  public  trial  by  an  impartial  jury  of  the  state 
and  district  wherein  the  crime  shall  have  been  committed  • 
and  must  be  informed  of  the  nature  and  cause  of  the  accusa- 


EXPRESS   LIMITATIONS.  145 

tion  ;  and  must  be  confronted  with  the  witnesses  against  him  , 
and  may  have  compulsory  process  to  obtain  his  own  wit- 
nesses ;  and  may  have  the  assistance  of  counsel  in  his  defence. 
Art.  VI. 

The  trial  by  jury  shall  be  preserved  in  suits  at  common  law, 
where  the  value  in  controversy  shall  exceed  twenty  dollars. 
Art.  VII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted.  Art. 
VIII. 

§  230.  The  separate  states  have  also  adopted  constitutions 
which  contain  these  or  similar  limitations  upon  the  local  gov- 
ernments. It  is  a  fact,  therefore,  that  the  entire  legislative  and 
administrative  power  of  the  whole  country,  whether  wielded 
by  the  nation  or  by  the  states,  is  subject  to  restraints  of  the 
same  general  nature  as  those  expressed  in  these  clauses,  and 
the  rights  and  liberties  of  the  people  are  guarded  at  all  hands 
against  encroachments  from  any  source,  as  much  as  is  consist- 
ent with  the  safety  of  the  nation.  It  is  true  that  the  same 
construction  may  not  be  given  to  a  provision  identical  in  lan- 
guage, in  all  the  states  ;  the  same  exercise  of  governmental 
power  maybe  regarded  in  one  commonwealth  as  in  accordance 
with,  and  in  another  as  opposed  to,  the  Bill  of  Rights  which 
forms  a  part  of  both  constitutions.  This  is  a  result  which 
must  flow  from  the  delegation  of  functions  to  bodies  politic  that 
are  in  a  measure  independent  of  each  other. 

To  whom  are  these  negative  Provisions  addressed  f 

§  231.  The  first  inquiry  which  suggests  itself,  and  which  I 
shall  proceed  to  answer,  is,  upon  whom  are  the  provisions  of 
the  United  States  Constitution  just  quoted,  binding ;  to  whom 
are  they  addressed  ?  They  are  expressed  in  the  most  general 
language ;  do  they  therefore  restrain  the  states  as  well  as  the 
nation  ?  or  are  they  only  applicable  to  the  latter  ?  This  ques- 
tion has  not  often  arisen  in  a  practical  form,  for  as  the  state 
constitutions,  with  few  exceptions,  have  contained  the  whole 
of  these  muniments  of  individual  liberty,  their  legislatures  have 
10 


146  AGAINST   WHOM   DIRECTED. 

been  restrained  by  their  own  organic  laws,  if  not  by  that  of 
the  nation.  But  the  question  may  easily  assume  a  very  prac- 
tical form  and  become  of  paramount  importance.  A  state 
whose  constitution  contains  limitations  similar  to  those  found 
in  the  fundamental  law  of  the  nation,  may,  through  its  legis- 
lative, administrative,  and  judicial  departments,  put  an  inter- 
pretation upon  these  provisions  which  is  oppressive  to  its  own 
inhabitants  and  destructive  of  their  liberties.  Could  these 
inhabitants  appeal  to  the  national  authorities,  and  bring  these 
negations  of  the  national  Constitution  to  bear  upon  the  local 
government  ? 

Or  the  state  may  abolish  these  restrictions  in  its  own  organic 
law,  and,  so  far  as  itself  is  concerned,  leave  its  government  free 
to  act  at  pleasure.  There  is  certainly  a  growing  feeling  that 
the  methods  of  administering  justice  both  in  civil  and  criminal 
cases,  which  we  have  borrowed  from  our  English  ancestors, 
are  too  cumbersome,  and  are  as  often  hindrances  as  helps  to 
the  right.  It  has  been  suggested  that  the  interests  of  the  pub- 
lic would  be  advanced  by  abolishing  the  grand  jury,  and  trial 
by  jury,  and  introducing  the  more  severe  methods  which  are 
used  in  the  continental  nations  of  Europe.  If  public  opinion 
in  any  state  should  become  ripe  for  such  a  change,  could  that 
state  so  amend  its  own  constitution  as  to  abolish  all  of  this 
time-honored  procedure,  and  allow  a  person  to  be  held  to  an- 
swer for  a  capital  or  otherwise  infamous  offence,  without  a 
presentment  or  indictment  of  a  grand  jury  ?  Could  the  state 
deprive  the  accused  of  the  trial  by  jury,  or  compel  him  to  be 
a  witness  against  himself?  Could  the  state  take  the  private 
property  of  its  inhabitants  without  making  just  compensation? 
or  deprive  them  of  life,  liberty,  or  property,  without  due  proc- 
ess of  law  ?  or  impose  excessive  fines,  or  inflict  cruel  and 
unusual  punishments?  Some  of  the  assumptions  contained 
in  this  series  of  cmestions  may  well  be  called  impossible  ;  but 
others  are  certainly  within  the  range  of  probability. 

§  232.  The  answer  is  that  the  general  limitations  contained 
in  the  United  States  Constitution,  and  which  have  been 
quoted,  have  reference  only  to  the  national  government,  and 
do  not  apply  to  the  several  states.     They  were  not  intended 


EXPRESS   LIMITATIONS.  147 

as  restrictions  upon  the  powers  of  the  local  commonwealths, 
but  only  upon  the  various  departments  which  administer  the 
public  affairs  of  the  entire  nation,  and  which  were  created 
by  the  organic  law.  So  far,  then,  as  the  states  do  not  in- 
fringe upon  express  provisions  in  the  Constitution  specially  ad- 
dressed to  them,  or  upon  those  implied  in  the  whole  scope  of 
that  instrument  and  in  the  grants  of  power  to  the  general 
government,  they  may  regulate  their  own  internal  economy 
as  seems  best  to  themselves.  The  United  States  are  forbidden 
either  by  the  legislative,  executive,  or  judicial  departments, 
to  deprive  a  person  of  any  of  the  immunities  and  privileges 
guarded  by  the  Bill  of  Rights.  The  states  may,  in  respect  to 
their  own  inhabitants,  if  consistent  with  their  own  organic  laws, 
infringe  upon  them  all. 

§  233.  This  construction  of  the  Constitution  is  supported  by 
the  judgments  both  of  the  national  and  the  local  courts.  In 
the  case  of  Barron  v.  The  Mayor  of  Baltimore  1  the  Supreme 
Court  of  the  United  States  gave  an  authoritative  interpretation 
to  these  clauses.  The  facts,  it  is  true,  applied  only  to  one 
provision,  —  that  which  forbids  the  taking  of  private  property 
for  public  use  without  just  compensation.  The  plaintiff  claimed 
that  the  city  of  Baltimore  had  taken  his  property  for  public 
use  without  just  compensation,  and  that  a  statute  of  the 
Maryland  legislature  authorizing  the  act  was  void  as  being 
opposed  to  the  negative  clause  of  the  United  States  Constitu- 
tion already  quoted.  The  reasoning  of  the  court  is  equally 
applicable  to  all  these  general  provisions  of  the  Bill  of  Rights. 
C.  J.  Marshall  says :  "  The  plaintiff  contends  that  the  case 
comes  within  that  clause  of  the  fifth  amendment  to  the  Con- 
stitution, which  inhibits  the  taking  of  private  property  for  public 
use  without  just  compensation.  He  insists  that  this  amend- 
ment, being  in  favor  of  the  liberty  of  the  citizen,  ought  to  be 
so  construed  as  to  restrain  the  legislative  power  of  a  state  as 
well  as  that  of  the  United  States.  The  question  thus  pre* 
sented  is,  we  think,  of  great  importance,  but  not  of  much 
difficulty.  The  Constitution  was  ordained  and  established  by 
the  people  of  the  United  States  for  themselves,  for  their  own 
1  7  Peters'  It.  243. 


148  UPON    WHOM  BINDING. 

government,  and  not  for  the  government  of  the  individual 
states.  Eacli  state  established  a  constitution  for  itself,  and, 
in  that  constitution,  provided  such  limitations  and  restrictions 
on  the  powers  of  its  particular  government,  as  its  judgment 
dictated.  The  people  of  the  United  States  framed  such  a 
government  for  the  United  States  as  they  supposed  best 
adapted  to  their  situation,  and  best  calculated  to  promote 
their  interests.  The  powers  to  be  conferred  on  this  govern- 
ment were  to  be  exercised  by  itself;  and  the  limitations  on 
power,  if  expressed  in  general  terms,  are  naturally,  and  we 
think  necessarily,  applicable  to  the  government  created  by  the 
instrument.  They  are  limitations  of  power  granted  in  the  in- 
strument itself,  not  of  distinct  governments,  framed  by  differ- 
ent persons,  and  for  different  purposes.  If  these  propositions 
are  correct,  the  fifth  amendment  must  be  understood  as  re- 
straining the  power  of  the  general  government,  not  as  appli- 
cable to  the  states.  In  their  several  constitutions  they  have 
imposed  such  restrictions  upon  their  respective  governments,  as 
their  wisdom  suggested  ;  such  as  they  deemed  most  proper  for 
themselves.  It  is  a  subject  on  which  they  judge  exclusively, 
and  with  which  others  interfere  no  farther  than  they  are  sup- 
posed to  have  a  common  interest." 

§  2-34.  The  interpretation  thus  formally  given  by  the  Su- 
preme Court  of  the  United  States  is  authoritative  and  final, 
and  it  has  been  repeatedly  confirmed  by  the  judgments  of 
state  tribunals.  In  New  York  it  was  decided  by  the  Supreme 
Court  in  the  case  of  Murphy  v.  The  People,1  that  a  statute 
of  that  state,  providing  for  the  summary  trial  and  convic- 
tion of  a  person  charged  with  petty  larceny,  not  being  op- 
posed to  the  local  constitution,  was  not  controlled  by  any 
if  the  amendments  to  the  United  States  Constitution.  In 
the  case  of  Barker  v.  The  People,2  the  subject  was  consid- 
ered and  decided  by  the  Court  of  Errors  —  then  the  tri- 
bunal of  last  resort  —  of  the  same  state.  Barker  had  been 
indicted  and  convicted  for  the  offence  of  sending  a  challenge  tc 
fight  a  duel.  The  punishment  awarded  by  the  statute  was, 
lhat  the  party  so  convicted  "  shall  be  incapable  of  holding,  oi 
1  2  Cowen's  It.  815.  2  3  Cowen's  R.  686. 


EXPRESS   LIMITATIONS.  149 

being  elected  to,  any  post  of  profit,  trust,  or  emolument,  jivil 
or  military,  under  this  state."  The  defendant  insisted  that 
this  statute  was  in  derogation  of  that  clause  in  the  amendments 
to  the  United  States  Constitution,  which  forbids  the  infliction 
of  cruel  and  unusual  punishments.  The  court  arrived  at  the 
conclusion  that  the  provision  in  question  only  regulates  the 
legislative  and  judicial  action  of  the  United  States,  and  has 
no  application  to  the  punishment  of  crimes  against  a  state. 
The  same  doctrine  has  been  held  by  the  Supreme  Court  of 
Pennsylvania  in  James  v.  The  Commonwealth.1  It  has  also 
been  decided  in  New  York  and  in  Connecticut,  that  the  pro- 
visions of  the  amendments,  declaring  that  no  person  shall  be 
deprived  of  his  property  without  due  process  of  law,  and  that 
in  suits  at  common  law,  where  the  amount  in  controversy  ex- 
ceed twenty  dollars,  the  trial  by  jury  shall  be  preserved,  are 
restrictive  only  upon  the  general  government  and  its  officers. 

§  235.  The  rule  of  interpretation  is  thus  firmly  established, 
but  the  rule  itself  is  certainly  an  unfortunate  one.  The 
United  States,  as  the  sovereign,  as  supreme  over  all  state  gov- 
ernments, should  be  able  to  afford  complete  protection  to  its 
citizens.  It  is  not  enough  that  this  protection  should  be  ex- 
tended to  citizens  while  abroad  ;  it  should  be  as  powerful  at 
home.  The  citizen  should  be  guarded  in  the  enjoyment  of 
his  civil  rights  of  life,  liberty,  limb,  and  property,  against  the 
unequal  and  oppressive  legislation  of  the  states.  The  rule 
under  consideration,  taken  in  connection  with  another  princi- 
ple which  I  will  now  merely  mention,  effectually  prevents  the 
national  courts  from  maintaining  the  rights  of  citizens  against 
the  encroachments  of  the  states,  so  far  as  those  rights  are 
affected  by  positive  restrictions.  This  second  principle  was 
briefly  alluded  to  in  §  144.  In  respect  to  cases  arising  under 
the  Constitution  and  laws  of  the  United  States,  the  jurisdiction 
of  the  national  tribunals  is  final  and  conclusive,  and  to  their 
judgments  the  state  legislatures  and  courts  must  yield.  But 
in  respect  to  cases  arising  solely  under  state  laws,  where  the 
national  Constitution  is  not  brought  in  question,  the  jurisdic- 
tion of  the  United  States  courts  is  not  final  and  conclusive, 
i  12  S.  &  R.  220. 


150  Li'OX    WHOM   BINDING. 

and  their  decisions  are  based  upon,  and  follow,  the  expositions 
of  those  laws  which  have  been  made  by  the  state  judiciary. 

§  236.  To  illustrate  :  in  a  case  arising  under  the  clauses  of 
the  Constitution  forbidding  a  state  to  pass  bills  of  attainder, 
ex  post  facto  laws,  or  laws  impairing  the  obligation  of  a  con- 
tract, the  Supreme  Court  would  finally  and  absolutely  decide 
the  question  whether  a  given  state  statute  was  in  fact  opposed 
to  these  clauses,  and  would  not  be  bound  at  all  by  the  opinions 
and  judgments  of  the  state  courts  upon  the  same  matter  in 
controversy.  The  national  government  may  thus  give  its 
citizens  complete  protection  against  the  state  legislation  which 
is  inhibited  by  these  salutary  provisions.  But  in  a  case  arising 
under  the  clause  in  a  state  constitution  which  forbids  a  person 
to  be  deprived  of  life,  liberty,  or  property  without  due  process 
of  law,  the  Supreme  Court  of  the  United  States  cannot  pass 
directly  and  independently  upon  the  question  whether  a  given 
state  statute,  or  a  given  act  done  under  the  authority  of  the 
state,  is  opposed  to  this  clause,  but  must  defer  to,  and  be  con- 
trolled by,  the  judgments  of  the  courts  of  the  same  common- 
wealth which  have  settled  the  construction  given  to  their  own 
organic  law.  Here  is  plainly  a  vast  field  open  for  injustice  and 
oppression  by  individual  states,  which  the  nation  has  now  no 
means  of  preventing.  Thus,  let  it  be  supposed  that  the  con- 
stitution of  a  certain  state  contains  clauses  securing  to  the 
people  the  right  of  keeping  and  bearing  arms  ;  and  declaring 
that  no  person  shall  be  deprived  of  life,  liberty,  and  property 
without  due  process  of  law.  Let  it  also  be  supposed  that  the 
legislature  of  the  same  state  passes  statutes  by  which  certain 
classes  of  the  inhabitants  —  say  negroes  —  are  required  to 
surrender  their  arms,  and  are  forbidden  to  keep  and  bear  them 
under  certain  penalties ;  and  also  statutes  by  which  the  same 
class  of  persons  are  required  to  be  hired  out  and  to  labor  in  a 
certain  prescribed  manner,  and  in  case  of  failure  to  comply 
with  these  regulations,  these  persons  are  declared  to  be 
vagrants,  and  liable  to  be  seized,  and  by  a  summary  proceed- 
ing, bound  out  to  service  for  a  term  of  years.  An  individual 
of  the  class  mentioned  in  these  statutes  incurs  some  or  all  of 
their  penalties ;  is  proceeded  against.     He  insists  that  the  stat- 


EXPRESS   LIMITATIONS.  151 

ntes  in  question  are  opposed  to  the  Bill  of  Rights  in  the  state 
constitution ;  the  local  courts  settle  the  law  against  him,  and 
hold  that  all  this  legislation  is  in  conformity  with  the  organic 
law  of  the  commonwealth.  Now,  this  person  could  obtain  no 
redress  from  the  national  courts  under  the  amendments  to  the 
United  States  Constitution  which  we  are  considering.  What- 
ever might  be  the  opinion  of  the  judges,  they  must  administer 
the  local  law  as  it  has  been  administered  by  the  local  judiciary. 

§  237.  This  is  a  result  which  is  dismaying,  and  a  remedy  is 
needed.  Such  a  remedy  is  easy,  and  the  question  of  its  adop- 
tion is  now  pending  before  the  people.  The  first  section  of 
the  proposed  fourteenth  amendment  to  the  United  States  Con- 
stitution is  in  these  words :  "  No  state  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States ;  nor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law, 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws."  I  consider  this  amendment  to  be  by  far 
more  important  than  any  which  has  been  adopted  since  the 
organization  of  the  government,  except  alone  the  one  abolish- 
ing the  institution  of  slavery.  It  would  give  the  nation  com- 
plete power  to  protect  its  citizens  against  local  injustice  and 
oppression  ;  a  power  which  it  does  not  now  adequately  possess, 
but  which,  beyond  all  doubt,  should  be  conferred  upon  it. 
Nor  would  this  amendment  interfere  with  any  of  the  rights, 
privileges,  and  functions  which  properly  belong  to  the  individ- 
ual states.  When  the  Constitution  has  from  the  beo-innino; 
contained  prohibitions  upon  the  power  of  the  states  to  pass 
bills  of  attainder,  ex  post  facto  laws,  or  laws  impairing  the  ob- 
ligation of  contracts,  it  is  strange  that  a  provision  forbidding 
acts  which  deprive  a  person  of  life,  liberty,  or  property,  with- 
out due  process  of  law,  was  not  also  inserted  at  the  outset ;  it 
is  more  than  strange  that  any  objection  can  be  urged  against 
the  proposition  to  now  remedy  the  defect. 

§  238.  The  constitutional  guaranties  contained  in  the  first 
iight  amendments,  being  thus  solely  intended  as  barriers 
against  any  encroachments  of  the  general  government  upon 
the  liberties  of  the  citizen,  are  binding  with  equal  force  upon 


152  RIGHT   TO   BEAR   ARMS. 

the  legislature,  upon  the  executive,  and  upon  the  judiciary. 
The  will  of  the  people  has  spoken  through  their  organic  law, 
and  the  government  which  they  have  created,  and  even  them- 
selves who  called  that  government  into  being,  must  alike  bow 
to  these  declarations  of  right.  Furthermore,  as  the  clauses  in 
question  are  mandatory  and  peremptory  in  their  nature,  and 
directed  at  once  to  each  branch  of  the  government,  they  re- 
quire no  statute  of  Congress,  decision  of  judge,  or  act  of  Pres- 
ident, to  execute  them,  and  give  them  binding  efficacy.  They 
execute  themselves  without  the  aid  of  an  inferior  law.  Any 
proceeding  of  the  government  in  derogation  of  their  command 
would  be  void  ;    any  proceeding  declaratory  would  be  useless. 

Examination  and  Discussion  of  these  Limitations. 

§  239.  I  shall  now  proceed  to  discuss,  in  a  brief  manner,  the 
meaning  and  nature  of  these  several  restrictions,  the  objects 
for  which  they  were  incorporated  into  the  organic  law,  the 
dangers  they  were  intended  to  guard  against,  and  the  extent 
of  their  application.  It  may  be  remarked  that  whatever  con- 
struction is  given  to  these  clauses,  will  also  apply  to  the  same 
or  similar  provisions  in  the  state  constitutions. 

1.  The  right  of  the  people  to  keep  and  bear  arms.  The 
object  of  this  clause  is  to  secure  a  well-armed  militia.  It  has 
always  been  the  policy  of  free  governments  to  dispense,  as  far 
as  possible,  with  standing  armies,  and  to  rely  for  their  defence, 
both  against  foreign  invasion  and  domestic  turbulence,  upon 
the  militia.  Regular  armies  have  always  been  associated  with 
despotism.  But  a  militia  would  be  useless  unless  the  citizens 
wTere  enabled  to  exercise  themselves  in  the  use  of  warlike 
weapons.  To  preserve  this  privilege,  and  to  secure  to  the 
people  the  ability  to  oppose  themselves  in  military  force  against 
the  usurpations  of  government,  as  well  as  against  enemies  from 
without,  that  government  is  forbidden  by  any  law  or  proceed- 
ing to  invade  or  destroy  the  right  to  keep  and  bear  arms.  But 
all  such  provisions,  all  such  guaranties,  must  be  construed  with 
-eference  to  their  intent  and  design.  This  constitutional  inhi- 
bition is  certainly  not  violated  by  laws  forbidding  persons  tc 


EXPRESS   LIMITATIONS.  153 

carry  dangerous  or  concealed  weapons,  or  laws  forbidding  the 
accumulation  of  quantities  of  arms  with  the  design  to  use  them 
in  a  riotous  or  seditious  manner.  The  clause  is  analogous  to 
the  one  securing  freedom  of  speech  and  of  the  press.  Freedom, 
not  license,  is  secured  ;  the  fair  use,  not  the  libellous  abuse,  is 
protected. 

§  240.  2.  The  quartering  of  soldiers  upon  private  citizens 
is  forbidden  in  time  of  peace,  and  only  allowed  in  time  of  war 
when  done  according  to  law.  This  provision  is  of  more  his- 
torical interest  than  practical  importance.  It  was  borrowed 
from  the  Petition  of  Right,  passed  by  Parliament  in  the  reign 
of  Charles  I.,  under  whom  the  practice  of  billeting  soldiers 
upon  the  citizens  had  grown  to  be  an  enormous  abuse. 

§  241.  3.  Unreasonable  searches  and  seizures  are  forbidden, 
and  no  warrants  of  search  or  arrest  must  issue  except  upon 
probable  cause,  supported  by  oath,  and  describing  the  place  to 
be  searched,  and  the  person  or  thing  to  be  seized. 

This  provision  is  of  the  utmost  importance  in  the  adminis- 
tration of  justice.  It  protects  the  liberty  and  property  of  the 
citizen  against  the  inquisitorial  proceedings  set  in  motion  by 
mere  suspicion  or  surmise.  It  demands  some  proof  to  substan 
tiate  a  charge  before  the  machinery  of  the  law  is  set  in  motion, 
and  requires  that  some  person  shall  assume  the  responsibility 
of  sustaining  the  charge  by  his  oath.  It  prevents  all  vague 
accusations  by  insisting  that  the  person  or  thing  to  be  seized, 
or  the  place  to  be  searched,  shall  be  particularly  described. 

This  clause  of  the  Constitution  was  particularly  aimed  at 
what  were  known  in  the  English  law  as  general  warrants. 
These  general  warrants  were  used  more  especially  in  the  case 
of  political  offences,  and  were  issued  by  the  government,  di- 
recting the  officers  to  search  all  suspected  places,  and  seize  all 
suspected  persons,  without  describing  any  place  or  person. 
The  execution  of  the  warrant  was  left  to  the  caprice  of  the 
individual  who  had  it  in  charge.  Although  these  warrants 
were  so  plainly  contrary  to  the  spirit  of  the  English  common 
'aw,  and  destructive  of  individual  rignts,  and  liable  to  become 
instruments  of  tyranny  in  the  hands  of  an  unscrupulous  official, 
they  continued  in  use  down  to  a  time  immediately  prior  to  the 


154  CRIMINAL  PROCEDURE. 

American  Revolution.  The  practice  was  finally  declared  ille- 
gal by  the  Court  of  King's  Bench  during  the  presidency  of 
Lord  Mansfield,  in  the  case  of  Money  v.  Leach.1  The  case 
arose  on  a  warrant  issued  by  one  of  the  Secretaries  of  State 
requiring  the  officers  "  to  make  diligent  search  for  the  authors 
and  publishers  "  of  a  certain  seditious  libel,  "  and  them  or  any 
of  them  having  found,  to  apprehend  and  seize,  together  with 
their  papers." 

§  242.  4.  The  course  of  proceeding  in  criminal  trials  fin-  all 
offences  except  those  of  a  petty  character,  is  established  :  an 
indictment  or  presentment  by  a  grand  jury  as  the  initiative  ;  a 
speedy  and  public  trial  of  the  accusation  by  a  jury  ;  informa- 
tion as  to  the  nature  of  the  charge  ;  public  examination  of  the 
witnesses  for  the  prosecution  in  the  presence  of  the  accused  ; 
opportunity  for  the  prisoner  to  procure  his  own  witnesses  ;  to 
maintain  silence  respecting  the  imputed  crime,  and  to  be  de- 
fended by  counsel. 

It  is  thus  that  the  Constitution  endeavors  to  protect  the 
liberties  of  the  citizen  against  any  oppressive  acts  of  the  gov- 
ernment, by  absolutely  prohibiting  that  government,  through  its 
officers,  from  deciding  first,  whether  a  person  shall  be  put  upon 
trial  for  an  alleged  offence,  and  secondly,  whether  he  is  guilty 
of  the  offence  which  may  be  alleged  against  him.  Both  of  these 
questions  must  be  determined  by  bodies  of  men  chosen  from  the 
people  at  large.  The  grand  jury  as  the  accusers,  and  the  petit 
jury  as  the  judges  of  the  fact,  are  a  part  of  the  English  system 
of  administering  justice,  and  have  been  thence  borrowed  by 
us.  No  doubt  the)'  have  been  greatly  instrumental  in  main- 
taining the  liberties  of  the  British  subject.  It  may  well  be 
questioned,  however,  if  the  grand  jury  is  not  now  so  cumber- 
some and  inefficient,  that  any  theoretical  advantages  which  may 
flow  from  it,  are  not  far  outweighed  by  the  practical  defects 
and  hindrances  which  are  inseparable  from  its  use  in  adminis- 
tering the  criminal  law.  Indeed,  it  has  been  already  abolished 
in  some  states.  I  am  strongly  of  the  opinion,  also,  that  some 
others  of  these  time-honored  principles  of  English  and  Amer- 
can  criminal  procedure  have  outlived  their  usefulness,  and  are 
1  3  Burr.  R.  1742. 


EXPRESS   LIMITATIONS.  15,5 

obstacles  to  the  proper  investigation  and  punishment  of  crime. 
The  provision  that  no  person  shall  be  compelled  to  be  a  wit- 
ness against  himself  can  only  be  supported  by  that  intense 
reverence  for  the  past  which  is  so  difficult  to  be  overcome. 
This  ancient  rule  of  the  English  law  has  been  entirely  repu- 
diated in  civil  cases,  and  there  is  no  reason  for  preserving  it  in 
criminal  trials.  A  judicial  trial  is  in  theory,  and  should  be  in 
fact,  a  means  of  ascertaining  the  truth ;  but  this  maxim  of  the 
law  closes  at  once  the  most  direct  and  certain  road  which  leads 
to  the  truth.  There  can  be  no  doubt  that  the  states  will 
gradually  abandon  this  provision,  and  reject  it  from  their  con- 
stitutions. 

§  248.  The  fifth  amendment  excepts  from  its  operation  a 
class  of  cases  ;  and  this  exception  applies  in  fact  to  the  whole 
course  of  criminal  investigations  as  regulated  by  the  Bill  of 
Rights.  These  cases  are  those  "  arising  in  the  land  or  naval 
forces,  or  in  the  militia  when  in  actual  service  in  time  of  war 
or  public  danger."  It  is  evident  that  the  navy  and  regular 
army,  at  all  times,  and  the  militia  when  in  actual  public  ser- 
vice, cannot  be  governed  by  the  code  of  laws  which  applies  to 
the  great  body  of  citizens.  Military  exigencies  require,  not 
individual  liberty,  but  subordination,  obedience.  The  very 
rules  which  are  framed  to  protect  the  individual  rights  of  the 
people,  would  destroy  an  army.  The  Constitution,  therefore, 
gave  Congress  the  power  to  make  rules  for  the  government 
of  the  land  and  naval  forces,  and  of  the  militia  employed  in  the 
service  of  the  United  States.1  These  rules  constitute  that  de- 
partment of  the  municipal  law  known  as  the  "  Military  Law  ; " 
and  the  methods  of  trial  and  punishment  are  military  in  their 
character. 

§  244.  5.  No  person  shall  be  twice  put  in  jeopardy  of  life 
or  limb  for  the  same  offence.  The  same  guaranty  is  contained 
in  most  or  all  of  the  state  constitutions  ;  indeed,  the  general 
maxim  which  includes  this  particular  case,  is  as  old  as  the 
common  law.  I  shall  not  attempt  to  quote  or  comment  upon 
the  many  cases  which  have  given  a  construction  to  this  clause. 
The  rule  which  is  settled  by  them  all  is,  that  a  person  shall 
1  Const.  Art.  I.  Sec.  VIIL 


156  DUE   PROCESS  OF  LAW. 

not  be  tried  a  second  time  for  the  same  offence  after  a  verdict 
of  conviction  or  acquittal  has  passed  upon  him.  But  this  rule 
must  be  taken  with  the  following  exceptions  :  After  acquittal 
the  state,  or  the  United  States,  cannot  procure  the  case  to  be 
reviewed  for  any  error  committed  by  judge  or  jury,  and  obtain 
a  new  trial ;  for  this  would  be  to  put  the  party  twice  in  jeop- 
ardy. But  after  conviction,  the  accused  may,  if  error  has 
been  committed,  obtain  a  new  trial ;  and  such  new  trial  is  not 
considered  to  be  a  second  jeopardizing  of  the  prisoner. 

§  245.  6.  No  person  shall  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law. 

The  same  provision  is  contained  in  the  state  constitutions. 
It  was  borrowed  from  Magna  Charta,  and  appears  in  that  cele- 
brated instrument  in  the  following  form  :  "  Nullus  liber  homo 
capiatur,  vel  imprisonetur,  aut  dissaisiatur,  aut  utlagetur,  aut 
exuletur,  aut  aliquo  modo  destruatur,  nee  super  eura  ibimus, 
nee  super  eum  mittemus,  nisi  per  legale  judicium  parium 
suorum,  vel  per  legem  terra?."  No  freeman  can  be  taken, 
or  imprisoned,  or  disseized,  or  outlawed,  or  in  any  other  man- 
ner injured,  nor  will  we  proceed  against  him,  unless  by  the 
lawful  judgment  of  his  peers,  or  by  the  law  of  the  land. 

The  phrase,  "  law  of  the  land,"  as  originally  used,  referred 
to  the  trial  by  wager  of  battle  or  by  ordeal,  as  distinguished 
from  trial  by  one's  peers  ;  but  it  has  long  been  settled  in  Eng- 
land and  America,  that  under  the  modern  law  and  institu- 
tions, this  phrase,  and  "  due  process  of  law,"  are  identical  in 
import.  Let  us  endeavor  to  obtain  a  clear  idea  of  their  mean- 
ing and  application. 

§  246.  It  is  plain  that  any  statute  which  Congress  or  legis- 
lature may  see  fit  to  pass,  is  not,  in  the  sense  in  which  the 
words  are  used  in  the  Constitution,  "  due  process  of  law,"  or 
"  the  law  of  the  land."  Otherwise  this  safeguard  of  private 
rights  would  become  a  mere  empty  form.  Due  process  of  law 
implies,  primarily  and  principally,  that  regular  course  of  judi- 
cial proceeding  to  which  our  fathers  were  accustomed  at  the 
time  the  Constitution  was  framed ;  and,  secondly,  and  in  a 
subordinate  degree,  those  more  summary  measures,  which  are 
aot  strictly  judicial,  but  which  had  long  been  known  in  the 


EXPRESS   LIMITATIONS.  157 

English  law,  and  which  were  in  familiar  use  when  the  Consti* 
tution  was  adopted.  These  summary  measures  generally, 
though  not  universally,  form  a  part  of  that  mass  of  regulations 
which  many  juridical  writers  term  Police,  and  which  relate  to 
the  preservation  of  public  quiet,  good  order,  health,  and  the 
like.  The  regular  judicial  proceedings,  which  thus  constitute 
due  process  of  law,  differed  in  different  courts,  but  they  were 
all  well  known  and  acknowledged.  They  all  required  a  judi- 
cial trial  to  determine  the  rights  of  parties,  a  public  charge,  an 
opportunity  to  answer,  and  a  verdict  of  jury  or  decision  of 
judge.  It  must  not  be  understood  that  trial  by  jury-  is  an 
essential  element  in  due  process  of  law.  Courts  of  equity  and 
admiralty  dispensed  with  this  method  of  determining  the  facts 
in  litigations  ;  while  in  common  law  cases,  and  in  criminal 
trials,  it  was  in  general  use. 

The  summary  measures  which  may  form  a  part  of  due  pro- 
cess of  law  are  those  which  have  been  admitted  from  the  very 
necessities  of  the  case,  to  protect  society  by  abating  nuisances, 
preserving  health,  warding  off  imminent  danger,  and  the  like, 
when  the  slower  and  more  formal  proceedings  of  the  courts 
would  be  ineffectual.  Such  measures  of  administration  have 
been  common  in  England  since  the  epoch  of  Magna  Charta, 
and  in  this  country  from  the  colonial  times.  Still,  no  statute 
of  Congress  or  of  a  state  legislature  authorizing  such  summary 
methods  would  be  in  accordance  with  due  process  of  law, 
unless  these  methods  were  substantially  identical  with  those  in 
existence  when  the  Constitution  was  framed,  and  which  might, 
therefore,  be  considered  as  within  the  meaning  and  intent  of 
the  people  who  adopted  the  organic  law. 

§  247.  The  cases  which  have  given  a  definition  or  illustra- 
tions of  due  process  of  law  are  exceedingly  numerous  ;  and,  as 
they  substantially  agree  in  their  conclusions,  I  shall  only  re- 
fer to  a  few,  in  which  the  judges  have  expressed  themselves 
with  great  clearness,  precision,  and  accuracy.  Mr.  Webster 
hus  defined  the  phrase  :  "  By  the  law  of  the  land  is  most 
clearly  intended  the  general  law  which  hears  before  it  con- 
demns ;  which  proceeds  upon  inquiry,  and  renders  judgment 
Dnly  after  trial.     The  meaning  is,  that  every  citizen  shall  hold 


158  DUE   PROCESS   OF   LAW. 

his  life,  liberty,  and  property,  under  the  protection  of  general 
rules  winch  govern  society.  Every  tiling  which  may  pass 
under  the  form  of  an  enactment  is  not  the  law  of  the  land." 

Mr.  Justice  Bronson,  certainly  one  of  the  ablest  jurists  that 
ever  sat  on  the  Supreme  Bench  of  New  York,  thus  defined  the 
phrase  in  Porter  v.  Taylor  :  1  "  The  words  '  by  the  law  of  the 
land  '  do  not  mean  a  statute  passed  for  the  purpose  of  working 
the  wrong.  That  construction  would  render  the  restriction 
absolutely  nugatory,  and  turn  this  part  of  the  Constitution  into 
mere  nonsense.  The  meaning  of  the  section  seems  to  be,  that 
no  member  of  the  state  shall  be  deprived  of  his  rights  and 
privileges,  unless  the  matter  shall  be  adjudged  against  him 
upon  trial  had  according  to  the  course  of  the  common  law.  It 
must  be  ascertained  judicially  that  he  has  forfeited  his  privi- 
leges, or  that  some  one  else  has  a  superior  title  to  the  property 
he  possesses,  before  either  of  them  can  be  taken  from  him. 
The  words,  due  process  of  law,  cannot  mean  less  than  a  prose- 
cution or  suit  according  to  the  prescribed  forms  and  solemnities 
for  ascertaining  guilt,  or  determining  the  title  to  property." 

§  248.  This  language  must  be  taken  with  the  important  lim- 
itation, that  the  forms  and  solemnities  required  must  be  such  as 
were  essentially  in  existence  at  the  time  of  forming  the  Con- 
stitution, as  a  part  of  the  ordinary  means  of  administering  jus- 
tice. Different  courts  employed  different  methods  of  proced- 
ure, and  were  appropriate  for  the  determination  of  different 
classes  of  rights.  But  the  essential  elements  in  all  judicial 
proceedings  were  the  same.  The  legislature  may  change  the 
outward  form,  the  mere  practice,  but  cannot  alter  the  sub- 
stance without  interfering  with  the  due  process  of  law. 

But  the  definitions  and  descriptions  quoted  would  give  a 
one-sided  view  of  the  phrase  under  consideration,  unless  it  be 
remembered  that  they  refer  to  one  branch  only  of  due  process 
of  law, —  that  which  consists  in  orderly  judicial  proceedings, — 
and  do  not  apply  to  the  more  summary  and  quasi-judicial  modes 
which  are  also  supported  by  the  constitutional  requirement. 
The  legality  of  these  latter  is  sustained  by  the  highest  authority. 

§  249.  The  following  language  was  used  in  Wynehammer 
i  4  Hill's  R.  140. 


EXPRESS   LIMITATIONS.  159 

v.  The  People,1  a  case  decided  with  great  consideration  by  the 
court  of  last  resort  in  New  York  :  "  I  doubt  whether  this 
clause  necessarily  imports  a  jury  trial  as  a  part  of  all  due 
process  of  law.  If  it  does,  then  it  is  difficult  to  say  on  what 
ground  equity  proceedings,  in  which  trial  by  jury  is  quite 
unusual,  and  by  which  men  are  often  deprived  of  property, 
can  be  sustained." 

In  Murray's  Lessee  v.  The  Hoboken  Land  Co.,'2  the  Su- 
preme Court  of  the  United  States  examined  this  whole  subject 
with  great  care,  and  gave  an  authoritative  interpretation  to 
the  clause.  The  case  was  somewhat  peculiar.  The  con- 
troversy related  to  the  title  to  a  certain  tract  of  land.  The 
land  had  been  formerly  owned  by  a  person  who  was  a  public 
officer  of  the  United  States.  In  accordance  with  a  general 
statute  of  Congress  authorizing  the  proceeding,  this  land  had 
been  seized  and  sold  by  a  process  called  a  distress  warrant, 
issued  by  the  Secretary  of  the  Treasury  against  this  public 
officer,  on  account  of  an  alleged  balance  due  from  him  to  the 
United  States,  although  this  balance  had  not  been  ascertained 
by  any  trial,  nor  had  the  warrant  been  issued  in  any  judicial 
investigation.  One  of  the  parties  to  the  suit  claimed  the  land 
by  virtue  of  this  sale.  The  original  owner  subsequently 
transferred  the  land,  and  the  other  party  succeeded  to  the 
rights  thus  created.  The  question  to  be  decided  was,  whether 
the  statute  of  Congress  and  the  summary  proceeding  of  seiz- 
ure and  sale  under  it  were  in  accordance  with  the  clause  of 
the  Constitution  requiring  due  process  of  law.  After  stating 
that  the  phrase  was  equivalent  to  the  other  words,  "  the  law 
of  the  land,"  and  that  its  meaning  was  to  be  ascertained  from 
the  practice  of  the  English  legislature  and  courts  subsequent 
to  the  time  of  Magna  Charta,  and  after  referring  to  many 
statutes  of  England  and  of  the  American  states  similar  to  the 
one  under  review,  Mr.  Justice  Curtis  concludes  as  follows  : 
"  Though  due  process  of  law  generally  implies  and  includes 
actor,  reus,  judex,  regular  allegations,  opportunity  to  answer, 
and  a  trial  according  to  some  settled  judicial  proceedings,  yet 
this  is  not  universally  true.  There  may  be,  and  we  have 
I  3  Kernan's  R.  425.  2  18  Howard's  R.  272. 


160  EIGHT   OF   EMINENT   DOMAIN. 

seen  that  there  are,  cases  under  the  law  of  England  after 
Magna  Charta,  and  as  it  was  brought  to  this  country  and 
acted  on  here,  in  which  process  in  its  nature  final  issues 
against  the  body,  lands,  and  goods  of  certain  public  officers 
without  any  such  trial."  The  statute  of  Congress  was  held 
to  be  valid.  This  case  fully  and  necessarily  sustains  the  posi- 
tion, that  methods  which  had  been  known  to  the  English 
and  American  law,  and  were  familiar  to  the  people  at  the  time 
when  the  Constitution  was  adopted,  although  not  judicial  in 
their  character,  do  constitute  a  portion  of  the  due  process  of 
law  by  which  a  person  may  be  deprived  of  life,  liberty,  or 
property. 

§  250.  The  limitation  under  consideration  has  been  applied 
in  numberless  instances.  Of  course  it  forbids  any  act  of  leg- 
islature or  of  executive  which  takes  one  person's  property  and 
gives  it  to  another;  or  which  would  imprison  or  otherwise 
punish  a  person  without  any  of  the  forms  of  judicial  proced- 
ure. The  difficulty  of  its  application  arises  in  two  classes  of 
cases:  (1)  in  those  where  a  semblance  of  regular  judicial  action 
has  been  preserved,  while  its  substance  has  perhaps  been 
abandoned;  and  (2)  in  those  instances  where  property  is 
taken  or  destroyed,  or  persons  restrained  in  a  summary  man- 
ner, and  the  contention  is  whether  these  acts  can  be  fairly  in- 
cluded among  those  measures  of  police  which  have  been  allowed 
by  the  English  and  American  law  from  time  immemorial. 

§  251.  7.  Private  property  shall  not  be  taken  for  public 
use  without  just  compensation.  A  similar  provision  is  found 
in  the  state  constitutions. 

The  nation,  or  the  state,  may  take  private  property  in  vir- 
tue of  two  capacities  inhering  in  the  body  politic,  —  the  right 
of  taxation,  and  the  right  of  eminent  domain.  The  subject 
of  the  taxing  power  will  be  considered  at  large  in  the  suc- 
ceeding chapter.  I  will  now  only  remark  that  it  is  not  at  all 
curtailed  or  restrained  by  the  clause  in  the  Bill  of  Rights  under 
examination.  In  levying  all  taxes  the  government  is  assumed 
to  make  compensation  to  the  payer,  in  the  security  which  is 
afforded  by  a  well-ordered  administration.  Every  individual 
is  charged  with  a  duty  to  contribute  towards  the  support  of 


EXPRESS   LIMITATIONS.  161 

the  government  his  share  of  the  public  expenses,  and,  as  will 
be  shown,  the  government  rests  under  no  restriction  as  to 
the  amount  which  it  may  claim. 

§  252.  But  the  right  of  eminent  domain  rests  upon  different 
principles.  The  government,  in  the  exercise  of  this  attri- 
bute, takes,  not  the  proportionate  share  which  every  individual 
is  bound  to  contribute,  but  something  over  and  above  his 
share,  and  is  therefore  bound  to  return  to  him  not  only  the 
general  compensation  which  it  gives  to  all  persons  who  pay 
taxes,  but  particular  compensation  for  the  property  seized. 
These  principles  are  very  clearly  stated  and  illustrated  by  Mr. 
Justice  Ruggles  in  the  case  of  Griffin  v.  The  Mayor  of  Brook- 
lyn,1 in  which  case  it  was  held  that  local  assessments  made 
upon  property-holders  by  the  municipal  authorities  of  cities 
and  villages  to  defray  the  expenses  of  opening  and  improving 
streets,  are  not  made  by  virtue  of  an  exercise  of  the  right  of 
eminent  domain,  but  by  virtue  of  the  taxing  power,  and  are 
not,  therefore,  in  derogation  of  the  clause  which  forbids  the 
taking  of  private  property  for  public  use  without  just  com- 
pensation. 

§  253.  The  power  to  take  private  property  for  public  use  is 
often,  and  indeed  quite  generally,  delegated  to  corporations 
which  form  no  part  of  the  government,  but  which  are  consti- 
tuted for  the  purpose  of  constructing  some  works  of  public 
utility,  as  canals,  railways,  turnpikes,  bridges,  and  the  like. 
It  may  seem  somewhat  startling  that  private  persons,  associ- 
ated only  for  private  ends,  for  their  own  private  gains,  should 
be  permitted  to  wield  a  power  which  by  its  very  nature  be- 
longs to  the  government,  simply  because  the  works  which 
they  construct  may  incidentally  be  a  benefit  to  the  community 
at  large.  The  rule  permitting  such  a  transfer  of  functions 
from  the  state  or  nation  to  private  individuals  was  not  adopted 
without  a  struggle  ;  but  it  is  now  too  well  settled  to  admit  of 
any  question,  although  the  power  is  plainly  liable  to  abuse. 

§  254.  It  may  be  asked  whether  the  United  States  may 
not,  in  any  conceivable  case,  take  the  private  property  of  its 
citizens    without    making    compensation.       May   not    military 

l  4  Comstock's  JJ.  419. 
11 


162  MILITARY    SEIZURES. 

officers  in  command  of  troops  engaged  in  actual  hostilities, 
seize  the  lands  and  effects  of  citizens  when  impelled  by  a  mili- 
tary necessity?  It  must  he  remarked,  that  whatever  the 
officers,  either  civil  or  military,  of  the  United  States  may  do, 
whether  in  obedience  to  a  statute  of  Congress,  order  of  judge, 
or  command  of  President,  the  United  States  is  not  legally 
liable  to  the  injured  party.  He  cannot  enforce  his  claim  by  a 
suit  against  the  government  ;  the  nation  as  a  supreme  polit- 
ical society  cannot  he  prosecuted.  If  the  act  was  unlawful, 
the  officer  or  agent  doing  it  makes  himself  personally  respon- 
sible as  a  trespasser  ;  the  direction  of  his  superior,  or  even  the 
void  statute  of  the  legislature  is  no  protection  or  justification. 
If  he  be  not  thus  personally  responsible,  it  follows  as  a  neces- 
sary consequence  that  the  act  was  lawful.  The  United  States 
may  be  morally  bound  to  make  compensation,  but  this  duty  is 
one  of  imperfect  obligation  ;  the  claimant  can  only  appeal  to 
the  discretion  of  Congress,  not  to  the  compulsory  power  of 
the  courts.  The  test  of  the  legal,  constitutional  authority  of 
the  government  is,  therefore,  the  personal  responsibility  or 
non-responsibility  of  its  officers  and  agents.  These  remarks 
ai*e  necessary  to  explain  the  language  of  Mr.  C.  J.  Taney, 
which  is  now  to  be  quoted. 

§  255.  The  Supreme  Court  of  the  United  States  had  occa- 
sion to  examine  the  power  of  the  government  to  seize  the 
private  property  of  a  citizen  without  making  compensation,  in 
the  case  of  Mitchell  v.  Harmony,1  growing  out  of  events  in 
the  Mexican  War.  Mitchell,  a  military  commander,  had 
seized  property  of  Harmony,  an  American  citizen,  claiming 
the  right  to  do  so  under  a  military  necessity.  Being  sued  for 
the  value  of  such  property,  the  question  of  fact  presented  for 
decision  was,  whether  the  necessity  actually  existed.  The 
court  were  of  opinion  that  it  did  not,  and  held  the  officer  re- 
sponsible. But  in  rendering  his  judgment,  Mr.  C.  J.  Taney 
laid  down  the  following  most  important  doctrines  :  —  "  There 
are,  without  doubt,  occasions  in  which  private  property  may 
lawfully  be  taken  possession  of  or  destroyed,  to  prevent  it 
£om  falling  into  the  hands  of  the  public  enemy  ;  and  alsc 
i  13  Howard's  R.  115. 


EXPEESS   LIMITATIONS.  163 

where  a  military  officer  charged  with  a  particular  duty  may 
Impress  private  property-  into  the  public  service,  or  take  it  for 
public  use.  Unquestionably,  in  such  cases,  the  government 
is  bound  to  make  full  compensation  to  the  owner,  but  the 
officer  is  not  a  trespasser."  I  pause  in  the  citation  to  remark 
that  this  duty  is  only  moral  and  not  legal.  Were  it  legal,  it 
could  only  be  so  because  the  act  was  done  without  authority, 
in  which  case  the  officer  would  be  a  trespasser.  The  judge 
proceeds:  "  But  we  are  clearly  of  the  opinion  that  in  all  these 
cases  the  danger  must  be  immediate  and  impending,  or  the 
necessity  urgent  for  the  public  service,  such  as  will  not  admit 
of  delay,  and  where  the  action  of  the  civil  authority  would  be 
too  late  in  providing  the  means  which  the  occasion  calls  for. 
It  is  impossible  to  define  the  particular  circumstances  of. 
danger  or  necessity  in  which  this  power  may  be  lawfully  exer- 
cised. Every  case  must  depend  upon  its  own  circumstances. 
It  is  the  emergency  which  gives  the  right  ;  and  the  emer- 
gency must  be  shown  to  exist  before  the  taking  can  be  justi- 
fied. In  deciding  upon  this  necessity,  however,  the  state  of 
the  facts  as  they  appeared  to  the  officer  at  the  time  he  acted, 
must  govern  the  decision  ;  for  he  must  necessarily  act  upon 
the  information  of  others,  as  well  as  his  own  observation. 
And  if,  with  such  information  as  he  has  a  right  to  rely  upon, 
there  is  reasonable  ground  for  believing  that  the  peril  is  im- 
mediate and  menacing,  or  the  necessity  urgent,  he  is  justified 
in  acting  upon  it ;  and  the  discovery  afterwards  that  it  was 
false  or  erroneous,  will  not  make  him  a  trespasser." 

§  256.  These  rules  must  be  applicable  to  many  cases  arising 
in  an  internal  war,  whether  of  invasion  or  rebellion.  To  in- 
quire how  far  they  are  applicable  would  lead  me  into  a  discus- 
sion too  extended  for  my  present  purpose.  It  is  plain  that 
military  commanders  may  seize  and  occupy  lands  of  private 
citizens  when  needed  for  encampments,  battles,  temporary 
fortifications ;  and  the  houses  of  private  citizens  when  needed 
for  quarters,  and  hospitals  ;  and  timber,  growing  and  cut,  when 
needed  for  fuel  or  works  of  defence  ;  and  provisions  when 
needed  for  subsistence  ;  and  cattle  or  horses  when  needed  for 
transportation.     When  the  necessity  actually  exists,  and  tli6 


164  DUE  PROCESS  OF  LAW. 

commander  acts  upon  it,  he  is  not  personally  responsible  ;  and 
the  only  duty  which  rests  upon  the  government  is  the  universal 
moral  duty  to  do  right  and  justice  under  all  circumstances,  a 
duty  which  in  this  case  can  only  be  voluntarily  performed  by 
Congress,  and  not  enforced  by  the  courts.  The  Congress,  if 
it  deems  best,  may  specially  provide  for  each  claimant,  or  it 
may  pass  general  statutes  under  which  all  demands  may  be 
examined  and  settled  ;  it  cannot  be  compelled  to  do  either. 

§  257.  The  restrictive  clauses  of  the  Constitution,  which 
have  thus  been  passed  under  a  rapid  review,  were  intended  to 
oppose  an  effectual  barrier  against  any  encroachments  by  the 
government  upon  the  private  rights  of  the  citizen.  Even  the 
administration  of  justice  in  the  ordinary  procedure  of  the 
courts  is  made  to  lean  strongly  in  favor  of  the  accused.  It  has 
been  thought  better  that  the  state  should  be  unable  to  punish 
crimes  in  certain  instances,  than  that  the  rulers  should  have 
the  power  through  a  perversion  of  judicial  proceedings,  to 
oppress  and  wrong  the  people.  While  we  retain  our  love  of 
civil  liberty,  while  the  blood  of  our  Saxon  ancestors  yet  runs 
in  our  veins,  these  safeguards  will  not  be  relaxed.  They  were 
wrested  from  the  Crown  by  the  people  of  England  through 
generations  of  conflict.  We  inherited  the  benefits  which  our 
fathers  had  obtained ;  we  shall  not  readily  suffer  them  to  be 
taken  from  us. 

§  258.  But  here  a  most  important  question  presents  itself. 
Do  these  restrictions  apply  with  equal  force,  and  under  all 
circumstances,  while  the  nation  is  operating  by  its  military, 
rather  than  by  its  civil  arm  ?  Does  a  condition  of  internal 
war,  and  do  the  exigencies  of  military  movements,  ever  dis- 
charge the  government  from  the  restraining  effect  of  this  Bill 
of  Rights?  Must  arrests  of  citizens  not  in  the  military  service 
be  made  in  all  instances  upon  special  warrants?  charges  in  all 
instances  be  preferred  by  grand  juries  ?  trials  had  in  all  in 
stances  by  petit  juries  ?  Must  due  process  of  law  be  observed 
under  all  circumstances?  These  are  questions  which,  as  ah 
know,  have  attracted  much  attention  during  the  past  six  years. 
I  do  not  purpose  to  consider  them  here,  and  shall  postpone 
wry  examination  of  the  subject  until  those  chapters  are  reached 


IMPLIED   LIMITATIONS.  165 

which  treat  of  the  war  powers  of  the  government.  It  is  suf- 
ficient now  to  refer  to  the  late  case  of  Ex  parte  Milligan,1  in 
which  the  Supreme  Court  of  the  United  States  expressed  an 
opinion  that  partially  covers  these  questions. 


SECTION  II. 

IMPLIED   LIMITATIONS. 

§  259.  I  come  now  to  consider  the  second  class  of  limita- 
tions upon  the  government,  namely,  those  which  are  implied 
from  the  general  nature  of  the  government  itself,  and  the  de- 
sign of  the  instrument  by  which  it  was  ci'eated. 

It  is  conceded  by  all  that  the  government  of  the  United 
States  is  one  of  limited  powers ;  limited  by  the  very  nature 
and  essence  of  its  construction.  It  can  wield  only  such  attri- 
butes as  are  conferred  upon  it  by  the  Constitution.  Now  the 
grants  contained  in  the  organic  law  are  all  expressed  in  the 
most  general  language ;  they  do  not  descend  to  details  ;  they 
do  not  assume  to  point  out  the  means  and  methods  by  which 
the  various  powers  are  to  be  made  operative.  To  illustrate : 
Congress  is  authorized  "  to  regulate  commerce  with  foreign 
nations."  Nothing  is  said  as  to  the  meaning  of  the  words 
"regulate"  and  "commerce,"  or  as  to  the  extent  to  which  the 
regulation  may  be  carried.  All  this  is  left  to  construction, 
and,  as  we  have  seen,  it  must  be  a  judicial  construction  which 
is  to  settle  the  import  of  this  and  all  other  grants  of  power. 

§  260.  Two  schools  of  interpretation  have  existed  among  the 
statesmen  and  polititians  of  the  country.  The  one  has  taught 
that  a  strict  and  close  construction  is  to  be  placed  upon  all  the 
grants  of  power  contained  in  the  organic  law,  so  as  to  limit 
the  government  to  those  acts  and  means  which  are  absolutely 
necessary  to  give  force  and  operation  to  the  grant.  The  other 
has  maintained  that  the  instrument  is  to  be  construed  liberally, 
so  as  to  enable  the  government  to  adopt  any  means  which 
would  fairly  and  reasonably  conduce  to  make  the  grant  of 
Dower  operative  ;  and  that  among  such  means  the  government 
i  4  Wallace's  R.  2. 


166  IMPLIED   LIMITATIONS. 

has  an  unrestricted  choice,  which  cannot  be  limited  by  the 
judiciary.  Those  who  have  thus  read  the  Constitution,  assert 
that  the  powers  of  the  government  are  full,  complete,  and  ab- 
solute within  the  range  of  the  subjects  committed  to  its  care  ; 
that  it  may  adopt  whatever  means  it  prefers  which  may  tend 
to  give  effect  to  the  general  provisions  of  the  fundamental  law; 
that  among  such  means  the  selection  is  entirely  a  matter  of 
policy  and  expediency,  and  not  of  constitutional  power.  No 
other  question  has  been  so  vigorously  debated,  so  fiercely  con- 
tested as  this.  It  has  been  at  the  bottom  of  most  of  the 
differences  which  have  separated  political  parties  from  the 
adoption  of  the  Constitution  unto  the  present  day. 

§  261.  Still  it  cannot  be  denied  that  the  practice  of  the 
government  has  been  in  accordance  with  the  latter  more  lib- 
eral theory  of  construction.  The  Supreme  Court  of  the 
United  States  has  uniformly  affirmed  this  view  with  the  great- 
est emphasis,  and  applied  it  to  cases  of  the  highest  importance. 
The  tribunals  of  most  of  the  states  have  followed  the  lead  of 
the  national  judiciary,  although  some  of  them  have  adopted 
the  opposing  theory,  and  enforced  it  with  great  earnestness. 
The  history  of  their  legislation,  and  the  character  of  their 
legislative  acts,  show  beyond  a  cavil  or  doubt  that  the  same 
method  of  interpretation  has  guided  Congress  in  the  discharge 
of  their  duties. 

§  "202.  A  brief  reference  to  a  few  examples  of  legislation 
will  serve  to  illustrate  and  confirm  the  latter  statement.  The 
Constitution  gives  to  the  government  the  power  to  regulate 
commerce,  A  strict  construction  would  restrain  this  function 
to  the  passage  of  such  statutes  as  were  absolutely  necessary  to 
the  regulation  ;  such  as  those  relating  to  the  registry  and  en- 
rolment of  vessels,  the  mutual  rights  and  duties  of  owners, 
masters,  and  seamen,  the  government  of  ports  and  harbors, 
and  the  like.  Yet,  under  this  grant  Congress  has  assumed  to 
enact  laws  for  the  improvement  of  harbors,  the  construction 
rf  piers,  the  erection  of  an  astronomical  observatory,  the  con- 
duct of  a  coast  survey.  It  has  invaded  the  common  law  by 
limiting  the  liability  of  carriers  on  the  ocean  and  the  grea1 
lakes ;  it  has  sent  out  expeditions  to  observe  an  eclipse,  and  tc 


IMPLIED   LIMITATIONS.  107 

sxplore  the  topography  of  the  Dead  Sea.  All  of  these  acts 
are,  indeed,  means  which  plainly  tend  to  the  regulation  of 
commerce ;  none  of  them  are  indispensable  to  it.  Yet,  I 
think  it  is  not  assuming  too  much  to  assert  that  the  nation  has 
settled  down  to  the  opinion  that  these  and  similar  measures 
are  proper  and  lawful. 

Again  ;  Congress  is  authorized  to  lay  taxes,  duties,  imposts, 
and  excises.  The  partisans  of  a  strict  construction  have  urged 
that  the  levying  of  duties  must  be  confined  to  so  much  as  may 
be  necessary  for  a  tax.  But  during  a  large  portion  of  our 
history  a  tariff  has  been  in  operation,  which  was  designed,  and 
did  operate  to  protect  certain  home  interests.  A  protective 
tariff  is  certainly  not  indispensable  to  the  execution  of  the 
power  to  lay  taxes  ;  but  it  is  as  certainly  one  of  the  methods 
of  exercising  that  power. 

Again  ;  Congress  is  authorized  to  borrow  money  on  the 
credit  of  the  United  States.  No  power  is  given  in  terms  to 
create  a  corporation.  Yet,  for  a  great  part  of  the  time  since 
the  Constitution  was  adopted,  an  United  States  bank  has  been 
in  existence,  created  by  Congress  ;  and  within  the  past  few 
years  a  system  of  national  banks  has  taken  the  place  of  the 
state  institutions.  Under  the  same  grant  of  power,  the  Con- 
gress has  authorized  the  issue  of  paper  currency  by  the  Secre- 
tary of  the  Treasury,  and  has  declared  such  notes  to  be  legal 
tender  in  the  payment  of  debts  public  and  private. 

Numberless  other  instances  might  be  cited,  but  these  will 
suffice  to  substantiate  the  statement  that  the  actual  legisla- 
tion of  the  United  States  has  been  conducted  upon  the  prin- 
ciple of  giving  a  free  and  liberal  construction  to  the  various 
clauses  of  the  Constitution  which  contain  grants  of  power. 
This  uniform  practice,  commenced  at  the  very  origin  of  the 
government,  and  continued  to  the  present  day,  is  evidence  of 
the  most  cogent  character  that  the  system  of  interpretation 
upon  which  it  has  been  based,  is  correct. 

§  263.  When  we  turn  to  the  authoritative  utterances  of  the 
Supreme  Court  of  the  United  States,  we  shall  find  that  nigh 
tribunal  from  the  very  outset  adopting  the  same  view  of  the 
organic  law,  and    steadily  adhering  thereto  until   their  very 


168  IMPLIED  LIMITATIONS. 

latest  decisions.  I  cannot  refer  to  all  the  cases  in  which  this 
principle  has  been  either  explicitly  announced  and  acted  on,  or 
implicitly  involved.  Such  a  multiplication  of  authorities  would 
be  unnecessary.  But  my  exposition  of  the  subject  would  be 
very  incomplete  did  I  not  quote  some  of  the  language  which 
lias  been  employed  by  that  court  in  leading  cases  where  the 
question  has  been  brought  before  it  for  careful  consideration 
and   settlement. 

§  204.  In  the  early  case  of  Fisher  v.  Blight,1  Mr.  C.  J. 
Marshall  said  :  "  It  would  be  incorrect  and  would  produce 
endless  difficulties,  if  the  opinion  should  be  maintained  that  no 
law  was  authorized  which  was  not  indispensably  necessary  to 
give  effect  to  a  specified  power.  Where  various  systems  might 
be  adopted  for  that  purpose,  it  might  be  said  with  respect  to 
each  that  it  was  not  necessary,  because  the  end  might  be  ob- 
tained by  other  means.  Congress  must  possess  the  choice  of 
means  which  are  in  fact  conducive  to  the  exercise  of  a  power 
granted  by  the  Constitution."  The  rule  wTas  applied  to  a 
statute  of  Congress  giving  the  United  States  a  priority  over 
other  creditors  in  collectino;  its  demand  from  the  estate  of  an 
insolvent  debtor. 

§  265.  In  Martin  v.  Hunter's  Lessee,2  the  Supreme  Court 
used  the  following  language  :  "  The  government  of  the  United 
States  can  claim  no  powers  which  are  not  granted  to  it  by  the 
Constitution  ;  and  the  powers  actually  granted  must  be  such 
as  are  expressly  given,  or  given  by  necessary  implication.  On 
the  other  hand,  this  instrument,  like  every  other  grant,  is  to 
have  a  reasonable  construction,  according  to  the  import  of  its 
terms  ;  and  where  a  power  is  expressly  given  in  general  terms, 
it  is  not  restrained  to  particular  cases,  unless  that  construction 
grows  out  of  the  context  expressly,  or  by  necessary  implica- 
tion. The  Constitution  unavoidably  deals  in  general  language. 
It  did  not  suit  the  purposes  of  the  people,  in  framing  this  great 
charter  of  our  liberties,  to  provide  for  minute  specifications  of 
:ts  powers,  or  to  declare  the  means  by  which  those  powers 
should  be  carried  into  execution.  Hence  its  powers  are  ex- 
pressed in  general  terms,  leaving  to  the  legislature  from  time 
l  2  Cranch's  R.  396.  2  i  Wheaton's  R.  304,  326. 


IMPLIED  LIMITATIONS.  169 

to  time  to  adopt  its  own  means  to  effectuate  legitimate  objects, 
and  to  mould  and  model  the  exercise  of  its  powers,  as  its  own 
wisdom  and  the  public  interests  should  require." 

§  2GQ.  In  McCulloch  v.  The  State  of  Maryland,1  the  sub- 
ject was  presented  to  the  Supreme  Court  in  the  most  formal 
manner.  The  question  at  issue  was  the  validity  of  a  statute 
creating  the  United  States  Bank.  Certainly,  no  direct  power 
is  given  to  establish  such  an  institution  ;  nor  was  it  indispen- 
sable to  the  execution  of  the  power  to  borrow  money,  to  collect 
taxes,  or  to  pay  debts.  Either  and  all  of  these  acts  may  well 
be  performed  without  a  bank.  The  constitutionality  of  the 
measure  was  rested  entirely  on  the  ground  that  such  an  insti- 
tution was  a  legitimate  means  of  carrying  out  the  general 
powers,  and  that  the  degree  of  its  necessity  was  a  question  of 
legislative  discretion  and  not  of  judicial  cognizance.  The 
counsel  engaged  in  the  argument  were  among  the  very  ablest 
in  the  nation,  including  Webster,  Pinckney,  and  Wirt.  The 
opinion  of  the  court  was  given  by  C.  J.  Marshall,  and  is  a 
masterpiece  of  judicial  reasoning  and  eloquence.  After  a  long 
and  exhaustive  discussion  on  the  nature  of  the  government, 
and  the  rules  by  which  the  Constitution  is  to  be  interpreted, 
in  the  course  of  which  he  observed,  "  if  any  one  proposition 
could  command  the  universal  assent  of  mankind,  we  might 
expect  it  would  be  this,  that  the  government  of  the  Union, 
though  limited  in  its  powers,  is  supreme  within  its  sphere  of 
action,"  he  concludes  his  argument  with  the  following  lan- 
guage :  "  We  admit,  as  all  must  admit,  that  the  powers  of  the 
government  are  limited,  and  that  its  limits  are  not  to  be  trans- 
cended. But  we  think  the  sound  construction  of  the  Consti- 
tution must  allow  to  the  national  legislature  that  discretion 
with  respect  to  the  means  by  which  the  powers  it  confers  are  to 
be  carried  into  execution,  which  will  enable  that  body  to  per- 
form the  high  duties  assigned  to  it,  in  the  manner  most  bene- 
ficial  to  the  people.  Let  the  end  be  legitimate,  let  it  be  within 
$he  scope  of  the  Constitution,  and  all  means  which  are  appro- 
priate, which  are  plainly  adapted  to  that  end,  which  are  not 
prohibited,  but  consist  with  the  letter  and  spirit  of  the  Con- 
stitution, are  constitutional." 

>  4  Wheaton's  R.  316. 


170  IMPLIED   LIMITATIONS. 

§  267.  In  the  great  case  of  Gibbons  v.  Ogden,1  the  same 
court,  by  the  mouth  of  the  Chief  Justice,  reasserted  the  same 
theory,  and  applied  it  to  the  grant  of  power  to  regulate  com- 
merce. The  judgment  contains  the  following  language  : 
"  This  instrument  contains  an  enumeration  of  powers  expressly 
granted  by  the  people  to  their  government.  It  has  been  said 
that  these  powers  ought  to  be  construed  strictly.  But  why 
ought  they  to  be  so  construed?  Is  there  one  sentence  in  the 
Constitution  which  gives  countenance  to  this  rule  ?  In  the 
last  of  the  enumerated  powers,  that  which  grants  expressly  the 
means  for  carrying  all  others  into  execution,  Congress  is  au- 
thorized to  make  all  laws  which  shall  be  necessary  and  proper 
for  the  purpose.  But  this  limitation  in  the  means  which  may 
be  used  is  not  extended  to  the  powers  which  are  conferred  ; 
nor  is  there  one  sentence  in  the  Constitution,  which  has  been 
pointed  out  by  the  gentlemen  of  the  bar,  or  which  we  have 
been  able  to  discern,  that  prescribes  this  rule.  We  do  not, 
therefore,  think  ourselves  justified  in  adopting  it.  What  do 
the  gentlemen  mean  by  a  strict  construction?  If  they  contend 
only  against  that  enlarged  construction  which  would  extend 
words  beyond  their  natural  and  obvious  import,  we  might 
question  the  application  of  the  terms,  but  should  not  controvert 
the  principle.  If  they  contend  for  that  narrow  construction 
which,  in  support  of  some  theory  not  to  be  found  in  the  Con- 
stitution, would  deny  to  the  government  those  powers  which 
the  words  of  the  grant,  as  usually  understood,  import,  and 
which  are  consistent  with  the  general  views  and  objects  of  the 
instrument  —  for  that  narrow  construction  which  would  crip- 
ple the  government,  and  render  it  unequal  for  the  objects  for 
which  it  is  declared  to  be  instituted,  and  to  which  the  powers 
given,  as  fairly  understood,  render  it  competent  —  then  we 
cannot  perceive  the  propriety  of  this  strict  construction,  nor 
adopt  it  as  the  rule  by  which  the  Constitution  is  to  be  ex- 
pounded." 

§  268.  Nor  must  it  be  supposed  that  these  liberal^and  high 
national  views  which  prevailed  in  the  Supreme  Court  during 
the  presidency  of  C.  J.  Marshall,  have  been  abandoned,  or  ic 
1  9  Wheaton's  R.  1. 


IMPLIED   LIMITATIONS.  171 

tlie  least  degree  modified,  in  later  times  when  the  court  has 
been  composed  of  other  judges  under  the  leadership  of  C.  J. 
Taney.  The  same  principles  have  been  constantly  maintained, 
and  the  same  doctrines  asserted  and  enforced.  Thus  in  The 
State  of  Pennsylvania  v.  The  Bridge  Company,1  it  was  decided 
that  the  power  to  regulate  commerce  confers  upon  Congress 
the  right  to  pass  a  statute  declaring  that  a  bridge  over  the  Ohio 
River  should  remain,  although  the  court  had  before  ordered  it 
to  be  removed  as  a  nuisance.  In  Ablemann  v.  Booth,2  C.  J. 
Taney  expressed  himself  in  the  following  pointed  manner. 
"  The  powers  of  the  general  government  and  of  the  states, 
although  both  exist  and  are  exercised  within  the  same  tern- 
torial  limits,  are  yet  separate  and  distinct  sovereignties,  acting 
separately  and  independently  of  each  other  within  their  re- 
spective spheres  ;  and  the  sphere  of  action  appropriated  to  the 
United  States,  is  as  far  beyond  the  reach  of  the  judicial  process 
issued  by  a  state  judge  or  a  state  court,  as  if  the  line  of  division 
was  traced  by  landmarks  and  monuments  visible  to  the  eye." 
One  of  the  latest  decisions  of  the  coui't  during  the  life  of  C.  J. 
Taney,  was  that  of  The  Bank  of  Commerce  v.  New  York 
City,3  which  held  that  the  power  to  borrow  money  conferred 
on  Congress  the  right,  as  one  of  the  means  for  making  this 
power  effective,  to  exempt  the  United  States  securities  from 
state  taxation  ;  and  a  series  of  subsequent  cases  has  reaffirmed 
the  doctrine.4  Numerous  judgments  of  the  state  courts  might 
be  quoted  to  the  same  effect,  but  it  is  sufficient  to  refer  the 
student  to  The  Metropolitan  Bank  v.  Van  Dyck,5  in  which  the 
Court  of  Appeals  of  New  York  examined  the  whole  subject  in 
a  very  exhaustive  manner,  and  applied  it  to  the  Legal  Tender 
Act  of  Congress. 

§  2G9.  The  following  principles  have  thus  been  settled  by 
the  concurring  action  of  the  national  legislature  and  judiciary. 

The  government  is  one  of  enumerated,  limited  powers,  and 

1   18  Howard's  R.  421. 

9  21  Howard's  R.  506,  516.  3  2  Black's  R.  620. 

4  The  Bank  Tax  Cases,  2  Wallace's  R.  200 ;  Van  Allen  v.  The  Asses- 
sors, 3  Wallace's  R.  573 ;  People  v.  Commissioners,  4  Wallace's  R.  244. 
6  13  Smith's  (27  N.  Y.)  R.  400. 


172  IMPLIED   LIMITATIONS. 

nothing  is  within  its  jurisdiction  that  is  not  contained  in  the 
constitutional  grants  either  expressly  or  by  reasonable  implica- 
tion. When  any  act  is  attempted  by  the  government,  author- 
ity for  that  act  must  be  found  within  the  provisions  of  the 
organic  law. 

But  within  the  scope  of  functions  assigned  to  it.  over  the 
subjects  committed  to  its  care,  the  powers  of  the  general  gov- 
ernment are  complete,  supreme,  absolute;  as  to  these  subjects 
of  legislation,  Congress  is  as  omnipotent  as  the  British  Parlia- 
ment. 

In  respect  to  particular  governmental  measures,  the  Con- 
stitution does  not  descend  to  any  minuteness  of  detail  in  the 
recital  of  the  various  functions  which  it  confers  ;  it  deals  only 
in  generals.  Daniel  Webster,  with  a  power  of  insight  and 
expression  which  condensed  a  volume  of  discussion  into  a 
single  sentence,  remarked  that  "  our  Constitution  is  one  of 
enumeration,  and  not  of  description."  It  contains,  in  fact,  a 
list  of  the  grand  subjects  and  purposes  which  must  be  the  final 
objects  of  all  legislation  ;  but  it  does  not  attempt  to  define  all 
the  means  and  methods  by  which  those  objects  may  be  attained. 
Congress  has  an  unlimited  choice  among  all  the  means  and 
methods  which  tend  to  accomplish  any  end  enumerated  in  the 
general  grants  of  the  Constitution.  If  the  particular  measure 
which  the  legislature  has  enacted,  has  a  tendency  to  bring 
about  the  end,  it  is  lawful,  is  within  the  scope  of  congres- 
sional action,  and  the  courts  cannot  interpose  and  defeat  this 
measure,  although  the  judges  may  be  of  opinion  that  the  means 
was  not  the  best.  In  this  manner  the  United  States  govern- 
ment, while  pursuing  the  legitimate  objects  for  which  it  was 
organized,  may  interfere  with  many  subjects  which  are  com- 
mitted to  the  several  states  and  which  ordinarily  fall  under 
their  exclusive  jurisdiction. 

Finally,  the  means  and  methods,  the  particular  measures  of 
legislation,  which  are  adopted,  must  have  some  relation  to  an 
end  included  in  the  general  grants  of  the  Constitution  ;  if  there 
be  absolutely  no  such  relation.  Congress  has  erred,  not  on  a 
mere  question  of  policy,  but  in  an  exercise  of  power  ;  their 
?vork  is  unwarranted  by  the  fundamental  law,  and  is  a  nul- 
itv. 


CHAPTER   IV. 

THE    LEGISLATIVE     POWERS    OF    THE    UNITED    STATES    GOVERN- 
MENT. 

§  270.  I  am  now  to  discuss  the  powers  which  the  people  of 
the  United  States  have  conferred  upon  their  Congress.  These 
powers  are  all  legislative  in  their  character.  In  considering 
them,  and  in  ascertaining  their  extent,  or,  in  other  words,  in 
determining  what  statutes  Congress  may  lawfully  pass,  we  must 
constantly  hear  in  mind  the  important  principle  which  was  stated 
and  illustrated  in  Section  II.  of  the  last  chapter,  —  a  principle 
to  be  freely  applied  in  every  case  of  doubt  and  difficulty.  In 
connection  with  this  subject  it  will  be  natural  and  proper  to 
speak  of  those  legislative  functions  and  attributes  which  have 
been  conferred  upon,  or  withheld  from,  the  several  states. 

The  first  power  which  we  meet  and  are  to  consider  is  that 
of  taxation. 

SECTION  I. 

THE   POWER   OF    TAXING. 

§  271.  I  will  collect  all  the  clauses  of  the  Constitution  wnich 
have  reference  to  the  general  subject  of  taxation. 

Art.  I.  Sec.  VIII.  contains  an  enumeration  of  legislative 
powers,  of  which  the  first  is  as  follows :  "  Congress  shall 
have  power  to  lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises, to  pay  the  debts  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States  ;  but  all  duties,  im- 
posts, and  excises  shall  be  uniform  throughout  the  United 
States."  Art.  I.  Sec.  II.  §  3,  provides  that  "  Direct  taxes 
shall  be  apportioned  among  the  several  states  which  may  be 


174  THE   POWER   OF   TAXING. 

included  within  this  Union,  according  to  their  respective  num- 
bers." Sec.  IX.  §  4,  declares  that  "  No  capitation,  or  other 
direct  tax  shall  be  laid,  unless  in  proportion  to  the  census  or 
enumeration  hereinbefore  directed  to  be  taken  ;  "  and  §  5, 
that  "  Xo  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  state  ;  "  and  §  6,  that  "  No  preference  shall  be  given  by 
any  regulation  of  revenue  to  the  ports  of  one  state  over  those 
of  another  ;  nor  shall  vessels  bound  to  or  from  one  state  be 
obliged  to  pay  duties  in  another."  Sec.  X.  §  2,  provides  that 
"No  state  shall,  without  the  consent  of  Congress,  lay  any  im- 
posts or  duties  on  imports  or  exports,  except  what  may  be  ab- 
solutely necessary  for  executing  its  inspection  laws  ;  "  and  §  3 
that  "  No  state  shall,  without  the  consent  of  Congress,  lav 
any  duty  of  tonnage." 

§  272.  In  examining  this  language,  we  may  consider,  first, 
What  powers  of  taxation  are  held  by  Congress  ;  and,  secondly, 
What  powers  are  held  by  the  several  states. 

The  first  of  these  questions  may  be  subdivided,  so  that  we 
may  separately  examine  (1)  the  purposes  for  which  taxes  may 
be  laid  and  collected  ;  (2)  the  kinds  of  taxes  ;  (3)  the  means 
and  methods  of  enforcing  the  power,  and  (4)  its  extent.  This 
last  subdivision  will  lead  us  to  the  final  inquiry,  how  far  the 
corresponding  function  of  the  states  is  limited. 

First.    What  Powers  of  Taxation  are  held  by  Congress. 
I.   The  Purposes  for  which  Taxes  may  be  Laid  and  Collected. 

§  273.  Congress  has  power  "  to  lay  and  collect  taxes,  etc., 
to  pay  the  debts  and  provide  for  the  common  defence  and 
general  welfare  of  the  United  States."  Do  these  two  clauses 
contain  two  separate  and  distinct  powers,  or  is  the  latter  a 
limitation  upon  the  other  ?  In  other  words,  does  the  Consti- 
tution, by  this  language,  confer  upon  the  legislature  a  general 
faculty  of  taxation,  and  also  another  general  capacity  to  pay 
public  debts  and  provide  for  the  common  defence  and  general 
welfare  ;  or  does  it  confer  a  limited  power  of  taxation,  by  re- 
stricting the  purposes  for  which  taxes  may  be  laid,  and  con 


THE   POWER   OF   TAXING.  175 

fining  them  to  the  payment  of  debts  and  provision  for  the 
common  defence  and  general  welfare  ?  The  latter  construc- 
tion is  the  one  which  has  been  almost  universally  adopted, 
although  the  language,  taken  apart  from  the  context,  is  suscep- 
tible of  the  other.  There  are  two  grounds  for  preferring  the 
interpretation  which  has  been  generally  received.  Both  these 
clauses  are  found  in  a  subsection  which  relates  to  taxation  ; 
and  it  would  be  doing  violence  to  the  context  to  wrest  one  of 
these  from  its  natural  connection  and  make  it  refer  to  a  subject 
entirely  different.  But  again  :  if  the  construction  should  be 
adopted  which  regards  the  second  clause  as  an  independent 
grant  of  power,  it  would,  in  effect,  be  making  our  general 
government  unlimited.  Providing  for  the  common  defence 
and  general  welfare  includes  every  thing  which  any  govern- 
ment could  possibly  do  ;  and  a  grant  of  power  in  these  broad 
terms  would  be  the  same  as  making  Congress  omnipotent, 
equal  in  the  extent  of  its  functions  to  the  British  Parliament. 

§  '214:.  The  subsection  should,  therefore,  be  understood  as 
though  it  read,  taxes  may  be  laid  and  collected  in  order  to  pay 
debts  and  provide  for  the  common  defence  and  general  wel- 
fare. Thus  the  Congress  does  not  possess  an  absolutely  un- 
limited power  of  taxation.  It  can  only  resort  to  this  high 
attribute  for  one  or  more  of  three  purposes,  payment  of  debts, 
the  common  defence,  the  general  welfare.  The  defence  must 
be  common,  and  the  welfare  general.  But,  after  all,  this 
leaves  a  sufficiently  wide  field  for  the  legislative  operations. 
Money  may  be  raised  to  pay  any  debts  however  contracted, 
whether  now  existing  or  to  become  clue  at  a  future  time. 
Common  defence  and  general  welfare  are  terms  of  the  broadest 
generality  ;  and  within  them  can  be  easily  included  all  the  ob- 
jects for  which  governments  may  legitimately  provide. 

§  275.  What  measures,  what  expenditures  will  promote  the 
common  defence  or  the  crenei'al  welfare,  Congress  can  alone 
decide,  and  its  decision  is  final.  It  is  certainly  not  necessary 
"hat  any  particular  expenditure  should  be  spread  over  the 
whole  country,  to  bring  it  within  the  meaning  of  a  defence 
which  shall  be  common,  or  a  welfare  which  shall  be  general. 
AJ1  the   disbursements  of  the  government  must  be   met  by 


176  THE   KINDS   OF   TAXES. 

revenue  of  some  kind,  and  must  finally  be  paid  by  some  species 
of  taxation,  except  that  small  portion  which  may  be  provided 
for  by  the  sale  of  public  property.  Congress  expends  vasts 
sums  of  money  in  the  erection  and  adornment  of  a  capitol,  in 
furnishing  a  library,  in  the  purchase  of  pictures,  statues,  and 
busts,  in  endowing  a  scientific  institution  ;  but  it  is  not  claimed 
that  these  disbursements  are  not  made  for  the  general  welfare. 
A  fort  in  New  York  is  for  the  common,  not  local,  defence. 
In  short,  the  legislature  is  not  trammelled  by  these  provisions; 
it  has  ample  scope  and  verge  in  which  to  indulge  its  proclivi- 
ties to  raise  and  expend  money. 

II.   The  various  Kinds  of  Taxes. 

§  276.  Congress  may  lay  and  collect  "  taxes,  duties,  im- 
posts, and  excises."  Another  clause  speaks  of  capitation  and 
other  direct  taxes.  Let  us  inquire  into  the  meaning  of  these 
various  terms.  The  word  "taxes"  is  generic,  and  includes 
all  species;  the  words  "duties,"  "imposts,"  "excises,"  "capi- 
tation," "  direct  "  and  "  indirect "  taxes,  are  specific,  in- 
stances and  examples  of  the  genus  tax.  It  is  plain  that  if  the 
Constitution  had  said  Congress  may  lay  and  collect  taxes, 
and  there  had  stopped,  it  would  have  conferred  all  the  power 
which  is  now  granted.  The  specifications  were  only  added 
for  greater  caution.  "  Duties  "  and  "  imposts,"  as  commonly 
used,  are  synonymous,  although  "  imposts "  is  etymologically 
a  word  of  broader  meaning.  They  are  especially  applied  to 
tho^e  sums  of  money  demanded  by  the  government  for  the 
privilege  of  importing  or  exporting  merchandise  ;  although 
"  duties  "  also  describes  fixed  sums  paid  on  ships  and  other 
instruments  of  commerce,  as  tonnage  duties  and  the  like. 
"  Excises  "  is  a  word  of  wide  significance,  and  includes  almost 
all  forms  of  tax  which  are  not  direct,  and  which  are  not  strictly 
"  duties."  The  various  payments  required  by  the  existing 
internal  revenue  laws  are  examples  of  excises.  Payments  of 
a  percentage  upon  incomes,  upon  sales,  upon  the  circulation 
of  banks,  upon  the  value  of  manufactured  articles,  upon  the 
products  of  the  soil ;    license  fees  for  carrying  on   different 


THE   TOWER   OF   TAXING.  177 

branches  of  trade  and  business ;  stamps  upon  written  instru- 
ments, judicial  proceedings,  articles  of  manufacture,  are  all 
excises. 

Capitation  or  poll  taxes  are  fixed  sum?  of  money  paid  by  or 
for  each  person  without  reference  to  his  property  or  business. 

§  277.  All  taxes  are  separated  into  two  classes,  —  the  direct 
and  the  indirect.  Direct  taxes  include  those  assessed  upon 
land,  and  those  which  pass  under  the  denomination  of  capita- 
tion or  poll,  and  probably  include  no  others.  Indirect  taxes 
would  then  embrace  all  the  remaining  species,  and  would  be 
co-extensive  with  duties,  imposts,  and  excises.  I  say  this 
division  is  probably  correct,  for  the  question  has  never  yet 
been  authoritatively  decided  by  the  Supreme  Court  of  the 
United  States ;  although  in  an  early  case,  which  will  be  re- 
ferred to  in  the  following  subdivision,  the  judges  expressed  a 
very  decided  opinion  that  no  other  taxes  were  "direct,"  within 
the  meaning  of  the  Constitution,  but  such  as  were  laid  upon 
lands,  and  such  as  were  strictly  capitation. 

III.   The  Means  and  Methods  of  enforcing  the  Taxing  Power. 

§  278.  The  Constitution  provides  that  no  capitation  or  other 
direct  tax  shall  be  laid  unless  in  proportion  to  the  census ;  that 
direct  taxes  shall  be  apportioned  among  the  several  states  ac- 
cording to  their  population ;  that  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States  ;  and,  in  imme- 
diate connection  with  the  last  provision,  that  no  discrimination 
shall  be  made  in  regulations  of  the  revenue  in  favor  of  any 
state.  Finally,  Congress  is  forbidden  to  lay  duties  on  articles 
exported  from  any  state.  What  is  the  meaning  of  these  pro- 
visions ?  Two  principles  apply  to  the  entire  subject  of  taxa- 
tion :  Apportionment  of  direct,  and  uniformity  of  indirect, 
taxes.  Direct  taxes  are  to  be  laid  and  collected  in  one  man- 
ner ;  all  others  in  a  different  mode. 

§  279.  Direct  taxes  must  all  be  apportioned  among  the  sev- 
eral states  according  to  their  popu.ation.  Thus,  if  Congress 
proposes  to  levy  a  direct  tax,  it  must  first  fix  the  whole  amount 
of  money  to  be  raised  in  this  manner ;  and  this  amount  it  must 

12 


178  METHODS   OF   ENFORCING   THE   POWER. 

iivide  among  all  the  states  in  stuns  proportioned  to  the  num- 

oer  of  inhabitants  in  each.  That  is  to  say,  the  same  process 
must  be  gone  through  with  which  is  adopted  in  ascertaining 
the  number  of  representatives  to  which  each  state  is  entitled. 
It  is  evident,  therefore,  that  the  raising  of  direct  taxes  involves 
a  large  amount  of  labor,  calculation,  and  adjustment.  But  the 
Constitution  is  peremptory,  and  a  statute  purporting  to  lay  and 
collect  a  tax  of  this  kind  in  any  other  manner,  would  be  a 
mere  nullity. 

§  280.  Imposts,  duties,  and  excises,  whether  laid  upon  im- 
ported goods,  upon  the  instruments  of  foreign  commerce,  or 
upon  internal  articles,  productions,  and  labor,  are  only  required 
to  be  uniform  throughout  the  United  States  ;  that  is,  the  rate 
fixed  for  any  article  or  subject  must  be  the  same  in  all  parts 
of  the  country.  It  is  not  necessary  that  all  articles  should  be 
subjected  to  the  burden,  or  that  all  upon  which  a  tax  is  laid 
should  bear  the  same  rate.  But  when  a  rate  has  been  deter- 
mined for  any  one  subject,  that  must  be  retained  for  the  same 
species  in  all  the  states.  Neither  is  it  necessary  to  ascertain 
at  the  outset  the  total  amount  to  be  raised,  or  to  divide  it 
among  the  states.  In  laying  and  collecting  indirect  taxes,  the 
government  touches  the  individual  apart  from  any  of  his  rela- 
tions to  the  state  of  which  he  is  an  inhabitant.  It  requires  no 
argument  to  show  that  this  description  of  tax  is  by  far  the 
most  convenient,  the  easiest  to  lay  and  collect  ;  and  for  this 
reason  it  has  been  resorted  to  at  all  times  by  the  general  gov- 
ernment. 

§  281.  It  becomes  necessary,  therefore,  to  inquire  a  little 
more  particularly,  what  are  direct,  and  what  indirect,  taxes? 
Few  cases  on  the  general  question  of  taxation  have  arisen 
and  been  decided  by  the  Supreme  Court,  for  the  simple  rea- 
son that,  until  the  past  few  years,  the  United  States  has  gen 
erally  been  able  to  obtain  all  needful  revenue  from  the  single 
source  of  duties  upon  imports.  There  can  be  no  doubt,  how 
ever,  that  all  the  taxes  provided  for  in  the  internal  revenue 
acts  now  in  operation  are  indirect. 

Tins  subject  came  before  the  Supreme  Court  of  the  United 
States  in  a  very  early  case,  Hylton   v.   The   United  States.' 
1  3  Dallas' R.  171. 


THE   POWER    OF   TAXING.  173 

In  the  year  1794  Congress  laid  a  tax  of  ten  dollars  on  all  car- 
nages, and  the  rate  was  thus  made  uniform.  The  validity  of 
the  statute  was  disputed  ;  it  was  claimed  that  the  tax  was  di- 
rect, and  should  have  been  apportioned  among  the  states.  The 
court  decided  that  this  tax  was  not  direct,  and  the  reasons 
given  for  the  decision  are  unanswerable,  and  would  seem  to 
cover  all  the  provisions  of  the  present  internal  revenue  laws. 

§  282.  "While  thus  determining  that  imposts  of  this  nature 
are  not  direct,  the  court  was  not  called  upon  to  decide  author- 
itatively as  to  the  character  of  all  direct  taxes  ;  but  the  sev- 
eral judges,  in  delivering  their  opinions,  could  not  avoid  dis- 
cussing the  general  question.  Mr.  Justice  Chase  said  :  "  I 
am  inclined  to  think  that  the  direct  taxes  contemplated  by  the 
Constitution  were  only  two,  namely,  a  capitation,  or  poll,  tax, 
simply,  without  regard  to  property,  profession,  or  other  cir- 
cumstance, and  a  tax  on  land.  I  doubt  whether  a  tax  by  a 
general  assessment  of  personal  property  within  the  United 
States  is  included  within  the  term  direct  tax."  Mr.  Justice 
Patterson  said  :  "  It  is  not  necessary  to  determine  whether  a 
tax  on  the  produce  of  land  be  a  direct  or  an  indirect  tax.  Per- 
haps the  immediate  product  of  land  in  its  original  and  crude 
state,  ought  to  be  considered  as  a  part  of  the  land  itself. 
When  the  produce  is  converted  into  a  manufacture,  it  assumes 
a  new  shape.  Whether  direct  taxes,  in  the  sense  of  the  Con- 
stitution, comprehend  any  other  than  a  capitation  tax,  and  a 
tax  upon  land,  is  a  questionable  point.  I  never  entertained  a 
doubt  that  the  principal — I  will  not  say  the  only — objects 
which  the  framers  of  the  Constitution  contemplated  as  falling 
within  the  rule  of  apportionment,  were  a  capitation  tax  and  a 
tax  on  land."  Mr.  Justice  Iredell  said  :  "  Perhaps  a  direct 
tax,  in  the  sense  of  the  Constitution,  can  mean  nothing  but  a 
tax  on  something  inseparably  connected  with  the  soil,  —  some- 
thing capable  of  apportionment  under  all  circumstances.  A 
land  and  a  po\l  tax  may  be  considered  of  this  description."  1 

i  Mr.  George  T.  Curtis,  in  an  article  contributed  to  Harper's  Monthly 
Magazine  for  August,  18G6,  criticizes  the  language  of  the  judges  in  this 
2ase.  I  cannot,  however,  adopt  his  speculations  ;  they  are  opposed  to  the 
miform  practice  of  the  government,  as  well  as  to  judicial  dicta. 


180  METHODS   OF   ENFORCING    THE  POWER. 

§  283.  The  clause  which  declares  that  "  no  tax  or  duty 
shall  be  laid  on  articles  exported  from  any  state,"  has  always 
been  considered  as  expressly  prohibiting  all  duties  and  imposts 
on  exports  as  such.  Still,  in  order  to  fall  within  this  restric- 
tion, the  tax  must  be  laid  upon  the  article  as  a  condition  of  its 
being  exported,  while  it  is,  so  to  speak,  in  the  act  of  transit 
aut  of  the  country.  An  export  duty  must  be  the  counter- 
part of  an  import  duty.  It  cannot  for  a  moment  be  admitted 
that  an  impost  upon  internal  articles  of  growth  and  manufac- 
ture, while  they  are  internal,  is  forbidden,  even  though  the 
principal,  nay,  even  sole,  use  to  which  these  articles  are  put 
in  the  trade  of  the  country  is  to  export  them.  Were  such  a 
position  to  be  assumed,  the  power  of  the  government  to  raise 
a  revenue  would  be  materially  curtailed  ;  the  necessary  result 
would  be  that  the  fact  of  subsequent  exportation  would  be  the 
test  of  the  prior  liability  to  be  taxed,  —  an  absurdity  too  great 
to  have  been  contemplated  by  the  framers  of  the  Constitution. 
But  the  language  of  that  instrument  does  not  admit  of  such  a 
construction.  It  is  not  said  that  no  tax  shall  be  laid  upon 
articles  which  may  possibly,  or  probably,  or  even  certainly,  be 
exported  from  a  state,  but  upon  "  articles  exported  "  from  any 
state. 

§  284.  The  power  to  lay  and  collect  taxes  includes  the 
power  to  adopt  all  measures  which  may  tend  to  carry  out  the 
object  of  the  general  provision.  Thus,  the  collection  of  duties 
on  imports  requires  the  appointment  of  the  retinue  of  officers 
necessary  for  the  purpose,  and  the  establishment  of  all  the 
means  and  checks  requisite  to  secure  and  guard  the  public 
funds.  The  same  is  true  of  the  internal  revenue  law.  The 
laving  and  collection  of  excises  includes  all  measures  conducive 
to  the  effective  working  of  the  system  :  measures  of  discovery, 
penalties  for  frauds,  punishments  for  criminal  acts.  The  im- 
position of  stamps  requires  that  all  instruments  on  which  the 
stamp  is  made  necessary,  should  be  declared  void  if  the  parties 
interested  have  neglected  to  obey  the  law.  To  sum  up :  the 
general  grant  of  power  to  lay  and  collect  taxes  involves  the 
particular  power  to  appoint  large  numbers  of  officers,  to  pro- 
vide for  their  compensation,  and  to  make  rules  for  their  guid- 


THE   POWER   OF   TAXING.  181 

ftnce  ;  the  power  to  forfeit  vessels,  cargoes,  and  ;ther  property 
of  persons  who  violate  the  laws ;  the  power  to  punish  by  fines 
and  imprisonment;  the  power  to  investigate  the  private  cir- 
cumstances of  citizens ;  the  power  to  interfere  with  private 
contracts  between  individuals,  and  to  declare  them  void  in  case 
of  failure  to  comply  with  the  statute  ;  and  perhaps  the  power 
to  interfere  in  like  manner  with  judicial  proceedings  in  the 
state  courts. 

IV.     The  Extent  of  the   Taxing  Power. 

§  285.  The  attribute  of  laying  and  collecting  taxes  belongs 
to  the  government  from  the  very  necessities  of  the  case.  To 
cany  on  the  public  affairs,  to  provide  for  the  common  defence, 
and  to  promote  the  general  welfare,  demand  a  revenue  com- 
mensurate with  the  exigencies  of  the  nation.  This  revenue 
must  finally  be  supplied  by  some  species  of  taxation.  A  re- 
sort to  loans  is  always  intended  as  temporary,  for  debts  thus 
contracted  must  some  time  be  paid  off.  The  government, 
therefore,  must  be  able  to  call  upon  the  property  of  individ- 
uals, and  there  can  be  no  limit  to  the  extent  of  that  call, 
within  the  legitimate  purposes  for  which  a  revenue  may  be 
raised.  In  regard  to  the  extent  of  the  power  to  tax,  C.  J. 
Marshall  said  in  Providence  Bank  v.  Billings  : 1  "  The  power 
of  legislation,  and  consequently  of  taxation,  operates  on  all 
the  persons  and  property  belonging  to  the  body  politic.  This 
is  an  original  principle  which  has  its  foundation  in  society 
itself.  It  is  granted  by  all  for  the  benefit  of  all.  It  resides  in 
the  government  as  a  part  of  itself,  and  need  not  be  reserved 
where  property  of  any  description,  or  the  right  to  use  it  in 
any  measure,  is  granted  to  individuals  or  corporate  bodies. 
However  absolute  the  right  of  an  individual  may  be,  it  is  still 
vx  the  nature  of  that  right  that  it  must  bear  a  portion  of  the 
public  burdens,  and  that  portion  must  be  determined  by  the 
legislature."  The  same  eminent  judge  remarked  in  McCul- 
loch  v.  The  State  of  Maryland :  2  "It  is  admitted  that  tho 
power  of  taxing  the  people  and  their  property  is  essential  to 
the  very  existence  of  government,  and  may  be  legitimately 
1  4  Peters'  R.  514,  561,  563.  2  4  Wheaton's  R.  316,  428. 


182  EXTENT   OF   THE   POWER. 

exercised  on  the  objects  to  which  it  is  applicable,  to  the  ut- 
most extent  to  which  the  government  may  choose  to  carry  it. 
The  only  security  against  the  abuse  of  this  power  is  found  in 
the  structure  of  the  government  itself.  In  imposing  a  tax, 
the  legislature  acts  upon  its  constituents.  This  is  in  general 
a  sufficient  security  against  erroneous  and  oppressive  taxation. 
The  people,  therefore,  give  to  their  government  a  right  of  tax- 
ing themselves  and  their  property  ;  and,  as  the  exigencies  of 
the  government  cannot  be  limited,  they  prescribe  no  limits  to 
the  exei'cise  of  this  right,  resting  confidently  on  the  interest 
of  the  legislator,  and  on  the  influence  of  the  constituents  over 
their  representative,  to  guard  them  against  its  abuse." 

§  286.  These  views  have  never  been  questioned  ;  all  ac- 
cede to  their  correctness.  Whenever,  then,  the  United  States 
may  lawfully  call  for  any  revenue  at  all,  there  is  no  limit  to 
the  amount  they  may  demand  and  collect.  When  they  may 
tax  at  all,  they  may  lay  heavy  or  light  burdens  according  to 
their  own  discretion.  Judges  and  courts  cannot  interfere  and 
control  this  discretion  by  deciding  that  any  particular  imposi- 
tion is  too  much  and  shall  not  be  collected.  The  amount  of  a 
tax  is  not  a  question  of  power,  but  of  policy;  not  of  constitu- 
tional law,  but  of  political  economy.  If  the  people  are 
weighed  down  by  greater  loads  than  they  are  willing  to  bear, 
they  have  the  sure  and  speedy  remedy  in  their  own  hands. 
The  biennial  election  of  Representatives  in  Congress  gives  fre- 
quent opportunity  to  change  these  public  servants  by  remov- 
ing those  who  voted  for  the  tax,  and  filling  their  places  with 
others  who  will  repeal  or  modify  the  obnoxious  law.  Such 
an  expression  of  public  opinion  would  inevitably  produce  its 
effect  upon  the  legislature.  The  people  have  constituted 
themselves  the  sole  judges  of  this  matter  ;  they  have  not 
parted  with  any  portion  of  this  attribute  to  the  courts,  national 
or  state. 

§  287.  When  Congress  sees  fit  to  lay  and  collect  duties 
upon  imported  goods,  they  may  demand  any  amount  wdiich  is 
.leemed  proper  in  their  own  discretion.  The  only  limit  upon 
their  power  is  that  they  must  fix  the  same  rate  for  the  same 
article  in  all  parts  of  the  country.  Uniformity  is  the  consti- 
tutional rule. 


THE   POWER   OF   TAXING.  183 

When  Congress  sees  fit  to  lay  and  collect  a  tax  on  land, 
they  may  demand  any  percentage  of  the  land's  worth  ;  sub- 
ject only  to  the  restriction  that  the  whole  amount  thus  to  be 
raised  must  be  apportioned  among  the  several  states  according 
to  their  respective  populations. 

When  Congress  resorts  to  the  system  of  excises,  they  may 
demand  any  percentage  of  incomes,  any  sums  as  license  fees 
for  carrying  on  particular  businesses,  any  portion  of  the 
amounts  paid  upon  sales,  any  value  of  stamps  upon  written 
instruments  or  articles  of  merchandise.  The  only  limitation 
is,  that  the  rule  of  uniformity  must  prevail  throughout  the 
United  States.  This  rule  does  not  require  that  all  trades, 
businesses,  merchandise,  written  instruments,  and  the  like, 
shall  be  taxed  alike,  or  even  taxed  at  all.  It  means  that 
when  an  impost  is  placed  upon  one  article,  the  same  burden 
shall  be  borne  by  that  subject  in  all  parts  of  the  country. 
Congress  may  discriminate  between  articles  in  all  the  several 
species  of  indirect  taxes  ;  the  discrimination  may  be  unfair 
and  impolitic,  but  it  is  not  illegal. 

§  288.  There  can  be  no  question  of  the  correctness  of  these 
general  propositions ;  they  are  universally  admitted.  But 
there  has  lately  arisen  a  question  growing  out  of  our  new 
scheme  of  revenue  legislation,  which  should  be  briefly  dis- 
cussed. Congress  has  provided  in  the  internal  revenue  laws 
now  in  operation,  that  stamps  of  various  denominations  shall 
be  fixed  to  certain  private  written  instruments ;  and  as  a  pen- 
alty for  a  violation  of  the  statute,  has  declared  that  instruments 
which  are  without  the  requisite  stamp,  shall  be  void.  There 
is  no  doubt  as  to  the  power  of  the  national  legislativre  to  pass 
such  a  law.  Stamp  duties  are,  and  long  have  been,  a  familiar 
species  of  excises  ;  and  the  power  to  lay  and  collect  such  taxes 
implies  the  power  to  enforce  obedience  by  imposing  any  pen- 
alty or  punishment  that  may  be  thought  necessary.  A  law 
without  a  sanction  would  be  no  law.  There  has  been,  there- 
fore, a  general  acquiescence  in  the  legality  of  these  provisions. 

§  289.  But  in  the  same  law  the  Congress  provided  that 
stamps  of  a  certain  denomination  should  be  affixed  to  divers 
oapers  used  in  judicial   proceedings ;    and  as  a  penalty  for  a 


18-1  EXTENT   OF   THE   POWER. 

disregard  of  the  requirement,  declared  that  the  papers  lacking 
the  appropriate  stamp,  could  not  be  used  in  the  suit,  or  in  the 
course  of  the  proceeding.  This  law  was  made  applicable  to 
controversies  and  other  matters  in  state  courts.1  The  public, 
the  bar,  and  the  judiciary,  generally  acquiesced  in  the  lawful- 
ness of  this  species  of  taxation.  A  few  state  courts,  however, 
have  denied  its  legality,  and  pronounced  it  unconstitutional. 
The  Supreme  Court  of  Indiana,  in  the  case  of  Warren  v. 
Paul,2  led  the  way  in  this  opposition  to  the  Congressional  legis- 
lation, and  the  judges  of  other  states  have  adopted  its  conclu- 
sions. These  courts  and  judges  have  rested  their  objections 
upon  some  assumed  sacred  character  of  judicial  proceedings, 
which  exempts  them  from  taxation.  They  have  quoted  cer- 
tain writers  upon  political  economy  who  pronounce  such  a 
stamp  duty  to  be  a  tax  upon  justice.  They  have  affirmed 
that  Congress,  by  placing  an  impost  on  papers  used  in  matters 
pending  before  the  state  tribunals,  has  interfered  with,  and 
endeavored  to  control,  a  subject  entirely  beyond  its  reach. 

§  290.  It  should  be  remarked  that  this  is  a  question  which 
must  be  decided  in  an  authoritative  manner  by  the  Supreme 
Court  of  the  United  States,  and  until  their  decision,  all  reason- 
ing upon  the  statutory  provision  must  be,  to  a  certain  extent, 
speculative.  But  I  have  no  doubt  as  to  the  legality  of  this 
application  of  stamp  duties.  The  grounds  of  this  opinion  are 
briefly  as  follows  :  — 

Even  granting  that  such  stamps  do  not  fall  within  the  cate- 
gory of  ordinary  excises,  they  are  unquestionably  a  species  of 
tax  ;  and  the  national  legislature  has  full  and  complete  powers 
conferred  upon  it  in  the  general  provision  that  it  may  lay 
.axes.  What  kind  of  taxes  is  not  designated  ;  all  kinds  are 
included. 

But,  in  fact,  these  stamps  are  excise  duties  as  much  as  those 
affixed  to  notes  or  deeds.  To  say  of  them  that  they  are  a  tax 
upon  justice,  is  only  to  call  them  hard  names.     It  does  not 

1  Although  these  provisions  have  been  lately  repealed,  yet,  as  the  subject 
,s  one  of  so  great  importance,  at  least  as  a  matter  of  speculation,  the  dis- 
cussion is  retained  in  the  text. 

2  22  Indiana  R.  276. 


THE   POWER   OF   TAXING.  185 

change  their  character  as  excises  ;  it  is  only  a  strong  expression 
of  opinion  that  they  are  impolitic.  Mr.  John  Stuart  Mill, 
when  he  used  this  language,  was  only  discussing  the  kinds  of 
revenue  laws  which  enlightened    legislative   bodies   ought   to 

too  to 

pass  ;  not  those  which  they  have  power  to  pass.  The  stamps 
in  question  are  really  taxes  upon  property. 

§  291.  Notes,  deeds,  and  other  instruments  are  the  means 
by  which  persons  acquire  and  hold  a  title  to  property.  The 
papers  in  judicial  proceedings  are  just  as  truly  the  means  by 
which  persons  acquire,  hold,  or  defend  their  title  to  property, 
or  rights  which  result  in  property,  or  in  property's  worth.  No 
court  attempts  to  enforce  a  right  which  does  not  immediately 
or  mediately  result  in  property.  Stamps  on  papers  used  in 
judicial  proceedings  are,  therefore,  not  taxes  upon  the  admin- 
istration of  justice,  but  taxes  upon  property  or  property  rights. 
A  note  or  check  is  given.  This  writing  is  only  valuable  as  it 
shall  result  in  a  certain  sum  of  money  or  money's  worth.  The 
law  assumes  this  value  and  demands  a  tax  thereon  correspond- 
ing in  amount.  A  person  brings  a  suit  to  recover  a  debt,  or 
damages  for  a  wrong,  or  some  specific  land  or  chattel,  or  to 
acquire  or  protect  some  right  having  an  intrinsic  money  value. 
The  process  he  issues  is  one  means  by  which  he  may  attain 
the  object  of  his  contention  ;  it  has  value  only  so  far  as  it  shall 
result  in  obtaining  that  object.  The  law  assumes  this  value, 
and  demands  a  certain  sum  for  the  privilege  of  issuing  the  pro- 
cess. This  is  certainly  a  tax  on  property,  and  not  upon  that 
series  of  acts  which  we  call  the  administration  of  justice.  And 
if  Congress  may  lay  the  tax  at  all,  there  is  no  dispute  but  that 
they  may  enforce  its  payment  by  declaring  the  proceeding  void 
in  which  the  requisite  stamp  is  wanting. 

§  292.  It  has  also  been  urged  that  if  Congress  may  thus 
impose  a  tax  in  connection  with  the  judicial  proceedings,  they 
might  also  in  connection  with  the  legislative  proceedings  of  a 
state,  and  might  declare  void  a  state  constitution  or  statute, 
when  the  paper  upon  which  it  was  engrossed  was  not  authen- 
ticated by  a  stamp.  There  is  really  no  analogy  between  these 
?ases.  Congress  does  not  impose  taxes  upon  the  acts,  as  such, 
if  public  functionaries,  whether  they  are  legislators,  judges,  oi 


186  EXTENT   OF   THE   POWER. 

administrative  officers.  With  the  single  exception  of  capitation 
taxes,  all  imposts  are  laid  upon  the  private  property  of  citizens. 
Judicial  proceedings  are  not  taxed  because  they  are  judicial 
proceedings,  but  because  they  are  the  direct  means  of  obtain- 
ing property  or  rights  which  have  a  value  as  property.  Stat- 
utes and  constitutions  are  not  the  representatives  of  property. 
Existing  as  laws,  they  are  only  rules  of  conduct,  and.  have  no 
taxable  quality. 

§  293.  The  objection,  that  Congress,  by  imposing  stamp  du- 
ties upon  papers  used  in  the  judicial  proceedings  of  state  courts, 
is  thereby  interfering  with  matters  over  which  it  has  no  con- 
trol, if  well  founded,  would  strike  at  the  very  foundation  of 
the  whole  system  of  excises.  It  is  true  that  the  Constitution 
does  nowhere  give  Congress  the  right  to  interfere  directly  with 
state  courts  or  laws,  so  as  to  control  their  action.  Neither 
does  it  confer  the  power  to  interfere  directly  with  the  trades, 
professions,  property,  transfers,  sales,  and  other  contracts  of 
private  individuals.  All  these  subjects  are  among  the  matters 
confided  to  the  states.  But  as  these  matters  all  stand  upon 
the  same  foundation,  the  unlimited  power  to  tax  gives  a  right 
to  interfere  with,  and  control  them  all  indirectly,  so  far  as  may 
be  necessary  to  make  the  tax  effective,  and  to  raise  the  desired 
amount  of  revenue.  There  is,  in  truth,  no  legal  objection  to 
the  taxing  of  judicial  papers,  which  does  not  apply  with  equal 
cogency  to  the  imposition  of  stamp  duties  upon  private  agree- 
ments. 

§  294.  Since  the  power  to  tax  is  unlimited  where  Congress 
has  the  right  to  invoke  it  at  all ;  or,  in  other  words,  since  the 
legislature  may  demand  and  receive  any  amount  of  revenue, 
when  the  purposes  are  such  that  revenue  can  be  appropriated 
for  them  at  all,  it  is  an  interesting  question,  for  what  purposes 
may  money  be  appropriated  ;  and  this  is  the  same  as  asking  for 
what  purposes  may  money  be  raised.  Growing  out  of  this  gen- 
eral inquiry,  many  controversies  have  arisen  which  have  divided 
political  parties,  and  which  have  been  maintained  both  upon 
the  policy  of  particular  measures,  and  upon  the  constitutional 
power  of  Congress  to  pass  them.  I  shall  simply  state  a  few 
of  these  questions  without  examining  them.     They  partake  sc 


POWER   OF   THE   STATES   TO   TAX.  187 

much  of  a  mere  political  character,  that  their  place  of  discus- 
sion is  rather  the  legislature,  or  the  popular  assembly,  than  the 
college  class-room,  the  law  school,  or  the  court.  Under  the 
general  grant  of  power  to  lay  and  collect  duties  and  imposts, 
may  Congress  lawfully  pass  a  protective  tariff?  Under  the 
general  provision  that  taxes  may  be  laid  to  provide  for  the 
common  defence  and  promote  the  general  welfare,  may  Con- 
gress raise  moneys  to  carry  out  schemes  of  local  internal 
improvement,  repair  harbors,  build  piers,  dredge  out  rivers, 
construct  roads  and  the  like  ? 

§  295.  The  dispute  upon  these  questions  has  been  long  and 
violent.  It  has  been  urged  on  the  one  side  that  a  protective 
tariff  is  not  a  measure  for  the  general  welfare,  but  for  the  aid 
of  particular  classes ;  that  schemes  of  local  improvement  do 
not  benefit  the  whole  nation,  but  only  special  portions.  On 
the  other  hand  these  propositions  are  denied,  and  it  is  claimed 
that  the  fostering  of  one  department  of  industry  promotes  the 
welfare  of  all ;  that  the  improvement  of  New  York  harbor, 
for  example,  produces  a  beneficial  effect  throughout  the  entire 
Union.  It  is  plain,  therefore,  that  the  controversy  reduces 
itself  finally  to  a  question  of  policy,  and  not  of  power.  If 
these  systems  of  legislation,  which  directly  and  immediately 
assist  a  part,  do  really  and  substantially  aid  the  whole,  the 
power  evidently  exists ;  and  whether  or  not  they  do  in  fact 
promote  the  general  welfare  is  purely  a  question  of  political 
economy,  upon  which  statesmen  have  differed,  and  doubtless 
will  continue  to  differ. 

I  may  remark,  however,  that  so  far  as  a  course  of  legislative 
action  can  settle  any  thing,  the  power  of  Congress  to  pass  such 
measures  may  be  considered  as  established. 

Second.      What  Powers  of  Taxation  are  held  by  the  Several 

States. 

§  296.  We  are  now  brought  to  the  consideration  of  a  sub- 
ject which  is  as  important  as  it  is  interesting,  and  which  has 
••epeatedly  come  before  the  Supreme  Court  of  the  United 
States  for  decision.     What  are  the  relations  of  the  nation  and 


188  LIMITATIONS  ON  THIS  TOWER. 

the  several  states,  in  the  exercise  of  the  taxing  power  by  each  ? 
Is  either  subject  to  the  other,  and  if  so  to  how  great  an  ex- 
tent ?  It  is  evident  that  the  Constitution  expressly  places 
some  limits  upon  the  capacity  of  the  status  to  tax.  They  may 
not  lay  duties  on  imports  and  exports,  except  such  as  shall  be 
absolutely  necessary  for  the  execution  of  their  inspection  laws, 
or  lav  any  tonnage  duties,  without  the  consent  of  Congress. 
In  addition  to  these  express,  are  there  any  implied  restrictions 
upon  the  taxing  power  of  the  state  ?  The  whole  subject  may, 
therefore,  be  separated  into  two  divisions :  (1)  the  implied 
limitations,  and  (2)  the  express  limitations. 

I.  Implied  Limitations  upon  the  Power  of  the  States  to  Tax. 

§  297.  The  United  States  government,  within  its  sphere  of 
action,  is  paramount,  and  the  states  are  subordinate.  This 
proposition  is  contained  in  the  express  language  of  the  Con- 
stitution, and  has  been  fully  illustrated  in  Part  I.  of  this  work. 
Because  the  nation  is  thus  paramount,  its  taxing  power  is  su- 
preme ;  it  may  be  applied  to  all  subjects  ;  it  may  be  exerted 
upon  all  individuals  and  upon  every  species  of  property ;  and 
its  demands  must  first  be  satisfied  before  the  states  can  resort 
to  the  exercise  of  their  function. 

On  the  other  hand,  the  states,  because  they  are  bodies  poli- 
tic, have  also  the  power  to  tax,  which  they  may  exert  in  all 
instances,  upon  all  subjects,  and  in  all  methods,  except  so  far 
as  they  are  restrained  by  the  national  Constitution.  In  addi- 
tion to  the  express  restrictions  upon  it  referred  to  in  §  271,  this 
power  of  the  states  is  limited  by  the  very  nature  of  the  entire  po- 
litical society  ;  by  the  dual  division  of  governmental  attributes  ; 
by  the  supremacy  of  the  nation,  and  the  subordination  of  the 
local  commonwealths.  This  implied  limitation  consists  in  two 
separate  and  distinct  features.  (1.)  The  state  power  to  tax 
must  be  exercised  second  to  that  of  the  general  government ;  or, 
in  other  words,  the  claims  of  the  nation  upon  persons  and  prop- 
erty have  priority  and  must  be  satisfied  even  to  the  exclusion 
■)f  those  of  the  states.  This  feature  is  involved  in  the  verj 
dea  of  supremacy.     (2.)   The  state  power  cannot  be  exerted 


POWER   OF   THE   STATES   TO   TAX.  189 

upon  the  property  of  the  general  government,  or  upon  means 
which  that  government  has  adopted  to  carry  on  its  public  affairs. 

§  298.  These  propositions  are  fully  sustained  by  the  follow- 
ing decisions  of  the  Supreme  Court.  Congress  had  chartered 
the  Bank  of  the  United  States,  a  branch  of  which  was  estab- 
lished in  Baltimore.  The  legislature  of  Maryland  passed  an 
act  which  had  the  effect  to  lay  a  tax  upon  this  branch.  The 
question  as  to  the  validity  of  this  tax  was  presented  in  Mc- 
Culloch  v.  The  State  of  Maryland,1  and  decided  in  the  nega- 
tive. The  state  law,  as  it  applied  to  the  bank,  was  held  to  be 
unconstitutional  and  void.  The  opinion  of  the  court,  given 
by  C.  J.  Marshall,  is  so  long  and  elaborate  that  it  cannot  be 
quoted  here  ;  but  it  should  be  carefully  read  by  all  students, 
professional  or  general,  who  desire  to  understand  the  nature 
of  our  government.  It  is  reported  that  William  Pinckney 
said  of  this  opinion,  that  in  it  he  saw  a  pledge  of  the  immor- 
tality of  the  Union.  The  argument  is,  that,  as  the  United 
States  is  paramount,  all  the  means  which  it  may  lawfully 
adopt  for  carrying  on  public  affairs,  are  supreme,  and  free  from 
state  legislation.  As  the  state  could  not  repeal  or  alter  the 
charter  of  the  bank,  so  it  could  not  do  any  thing  which  tends 
to  hinder  or  impair  the  efficiency  of  that  institution.  But  the 
right  to  tax,  implies  the  right  to  destroy  ;  for  if  the  state  may 
tax  at  all,  it  may  tax  to  such  a  degree  as  to  prevent  the  oper- 
ation of  the  bank  ;  and  any  amount  of  taxation  has  that  ten- 
dency. 

The  same  question  was  afterwards  again  brought  up  in  Os- 
born  v.  The  Bank  of  the  United  States.2  The  State  of  Ohio 
had  laid  a  special  tax  of  $50,000  a  year  upon  a  branch  of  the 
bank,  for  the  express  purpose  of  destroying  it.  The  case 
showed  the  results  which  might  be  apprehended  from  the 
exercise  by  the  states  of  a  power  to  tax  the  means  of  carrying 
on  the  general  government.  The  Supreme  Court  adhered  to 
their  former  view. 

§  299.  The  doctrine  was  applied  under  very  different  cir» 
cumstances  in  the  case  of  Dobbins  v.  The  Commissioners  of 
Erie  County.3  A  captain  of  a  United  States  Revenue  Cut- 
l  4  Wheaton's  R.  316.         3  9  Wbeaton's  R.  738.  3  16  Peters'  R.  435. 


190  LIMITATIONS   ON   YIIIS   POWER. 

ter  had  been  taxed  in  Pennsylvania  upon  liis  salary  as  a 
national  officer.  The  sole  question  was  as  to  the  validity  of 
the  state  tax  ;  and  the  court  unanimously  held  that  it  was  void, 
as  being  beyond  the  power  of  the  state  to  impose.  This 
occurred  under  the  presidency  of  C.  J.  Taney;  so  that  the 
court  had  plainly  not  receded  from  the  high  position  assumed 
under  the  leadership  of  C.  J.  Marshall.  The  opinion  delivered 
by  Mr.  Justice  Wayne  is  so  concise  and  accurate  a  statement 
of  the  rule  and  its  reasons,  that  I  will  epiote  its  language  : 
"  Taxation  is  a  sacred  right  essential  to  the  existence  of  a  gov- 
eminent,  an  incident  of  sovereigntv.  The  right  of  legislation 
is  co-extensive  with  the  incident,  to  attach  it  to  all  persons  and 
property  within  the  jurisdiction  of  a  state.  But  in  our  system 
there  are  limitations  upon  that  right.  There  is  a  concurrent 
right  of  legislation  in  the  states  and  in  the  United  States,  ex- 
cept as  both  are  restrained  by  the  Constitution  of  the  United 
States.  Both  are  restrained  by  express  prohibitions ;  and  tho 
states  are  restrained  by  such  prohibitions  as  are  implied  when 
the  exercise  of  the  right  by  a  state  conflicts  with  the  perfect 
execution  of  another  sovereign  power  delegated  to  the  United 
States.  That  occurs  when  taxation  by  a  state  acts  upon  the 
instruments,  and  emoluments,  and  persons  which  the  United 
States  may  use  and  employ  as  necessary  and  proper  means  to 
execute  their  sovereign  powers.  The  government  of  the 
United  States  is  supreme  within  its  sphere  of  action."  The 
court  applied  this  principle  to  the  salaries  of  officers  under  the 
general  government. 

§  300.  The  same  construction  of  the  Constitution  has  also 
been  affirmed  in  a  series  of  decisions,  commencing  in  the  year 
1829,  and  extending  to  the  present  time,  and  applied  to  the 
stock  and  other  public  securities  of  the  United  States.  In 
Weston  v.  The  City  Council  of  Charleston,1  the  facts  were 
briefly  as  follows.  The  city  council  of  Charleston,  by  virtue 
»f  an  act  of  the  South  Carolina  legislature,  laid  a  tax  upon  all 
nersonal  estate,  enumerating  the  different  kinds  of  persona] 
property,  and  including  stocks  of  the  United  States  in  terms. 
The  plaintiff  was  assessed  for  certain  of  these  stocks,  and  com 
1  2  Peters'  R.  449. 


POWER   OF   THE   STATES   TO   TAX.  191 

menced  proceedings  to  annul  the  assessment  on  the  ground  that 
the  law,  so  far  as  it  applied  to  such  securities,  was  unconstitu- 
tional and  void.  The  Supreme  Court  sustained  the  plaintiff's 
contention,  and  annulled  the  assessment.  The  case  actually 
decided  that  stocks  of  the  United  States,  owned  by  private 
persons  or  by  corporations,  cannot  be  taxed  as  such  by  the 
separate  states.  The  grounds  of  the  judgment  were,  that  the 
general  government  possesses  the  power  to  borrow  money  ;  that 
this  power  is  supreme  and  paramount ;  that  the  states  may  not 
prevent,  or  do  any  thing  to  interfere  with,  its  execution  ;  that 
taxing  the  evidences  of  debt  in  the  hands  of  owners  would  tend 
to  have  this  effect  by  diminishing  their  value,  and  thus  making 
persons  less  willing  to  loan  money  to  the  government. 

301.  The  question  arose  again  in  1862,  under  a  somewhat 
different  form,  and  the  Supreme  Court  took  a  further  step  in 
the  direction  of  limiting  the  taxing  powers  of  the  states,  in  The 
Bank  of  Commerce  v.  The  City  of  New  York.1  The  statute 
of  New  York  State  provided  for  taxing  banks  upon  the  amount 
of  their  capitals.  The  Bank  of  Commerce  had  a  capital  of 
several  millions  of  dollars,  and  the  largest  proportion  thereof 
was  invested  in  United  States  securities.  The  bank  claimed 
that  this  portion  was  exempt  from  state  taxation.  The  asses- 
sors, however,  fixed  the  taxable  property  of  the  bank  at  the 
whole  value  of  the  capital  stock  without  regard  to  the  fact  of 
its  being  chiefly  invested  in  the  public  debt  of  the  United 
States,  but  added  that  this  was  not  made  as  an  assessment 
upon  the  public  debt,  but  upon  the  bank  capital.  The  Court 
of  Appeals  of  New  York  held  the  assessment  valid,  distinguish- 
ing the  case  from  that  of  Weston  v.  The  City  Council  of 
Charleston.2  The  distinction  insisted  upon  was  that  in  the 
latter  case  the  tax  was  laid  upon  United  States  stock  eo  nom- 
ine, while,  in  the  New  York  case,  the  public  securities  were 
included  in  the  mass  of  property  owned  by  the  corporation, 
and  were  taxable  with  that  aggregate.3  The  Supreme  Court 
of  the  United  States  repudiated  this  distinction  and  reversed 

i  2  Black's  R..  620.  *  2  Peters'  R.  449. 

3  The  People  v.  The  Commissioners  of  Taxes.  9  Smith's  R.  (23  N.  5T.) 
192. 


192  LIMITATIONS    ON   THIS   POWER. 

the  judgment  of  the  Court  of  Appeals,  affirming  the  following 
propositions  :  that  stock  of  the  United  States  is  not  subject  to 
taxation  under  state  laws;  that  a  state  law  for  that  purpose  18 
unconstitutional,  whether  it  imposes  a  tax  on  the  evidences  of 
public  debt  by  name,  or  includes  them  in  the  aggregate  of  the 
tax-payer's  property,  to  be  valued  like  the  rest,  at  its  worth; 
that  the  portion  of  the  capital  of  a  state  bank  which  it  lias 
invested  in  United  States  stocks,  bonds,  and  other  securities, 
is  not  liable  to  taxation  by  the  state;  that  the  taxing  power, 
so  far  as  it  is  reserved  to  the  states  and  used  by  them  within 
constitutional  limits,  cannot  be  controlled  or  restrained  by  the 
national  court,  the  prudence  of  its  exercise  not  being  a  judicial 
question  ;  but  a  state  tax  on  the  loans  of  the  general  govern- 
ment, is  a  restriction  upon  the  constitutional  power  of  the 
United  States  to  borrow  money ;  and  if  the  states  had  such  a 
right,  being  in  its  nature  unlimited,  it  might  be  so  used  as  to 
defeat  the  national  power  altogether. 

§  302.  Prior  to  the  decision  last  quoted,  the  statute  of  New 
York  had  required  that  the  capital  stock  of  banks  should  be  as- 
sessed and  taxed  at  its  actual  value.  Shortly  after  the  judgment 
of  the  Supreme  Court,  the  legislature  of  New  York  changed 
the  language  of  their  statute,  and  enacted  that  all  "banks  shall 
be  liable  to  taxation  on  a  valuation  equal  to  the  amount  of  their 
stock,  and  their  surplus  earnings."  Under  this  latter  law,  the 
banks  were  assessed  and  taxed  upon  such  a  valuation,  although 
their  capitals  were  partially  or  wholly  invested  in  United  States 
securities.  The  Court  of  Appeals  in  New  York  again  sus- 
tained the  action  of  the  local  assessors  ;  and  held  that  the  tax 
thus  laid  was  not  imposed  upon  the  bank  capitals,  and,  as  a 
consequence,  was  not  a  tax  upon  the  national  securities  in 
which  such  capitals  were  invested.  Thus  a  mere  act  of  legis- 
lative legerdemain  was  made  sufficient  to  avoid  the  effect  of 
far  reaching  principles  established  by  the  national  judges  ;  the 
substitution  of  an  intangible  "  valuation  "  instead  of  the  real 
"  capital,"  was  treated  as  a  substantial  change.  But  the  Su- 
preme Court  of  the  United  States  swept  away  these  refinements, 
and  in  the  Bank  Tax  Cases,1  decided  the  assessment  and  tax 
1  2  Wallace's  R.  200. 


POWER   OF   THE   STATES   TO   TAX.  193 

invalid,  and  reaffirmed  the  doctrines  of  Bank  of  Commerce  v. 
New  York.1 

§  304.  In  the  foregoing  cases  the  banks  themselves,  which 
were  created  by  Congress  as  means  and  instruments  for  man- 
aging the  national  finances,  or  which  owned  public  securities 
of  the  United  States,  were  taxed,  and  the  tax  was  in  every 
instance  declared  to  be  improper.  Another  question  now  pre- 
sents itself.  Are  the  shareholders  in  such  banks  also  exempt 
from  state  taxation  in  respect  of  the  shares  which  they  own  ? 
A  single  principle  of  law  would  seem  to  be  an  answer  to  this 
question.  The  corporation  is  entirely  distinct  from  the  mem- 
bers who  compose  it ;  the  property  of  the  corporation  is  en- 
tirely distinct  from  the  property  of  its  stockholders.  No 
member  of  a  corporation,  by  virtue  of  his  ownership  of  a  num- 
ber of  shares,  owns  any  portion  of  the  lands,  moneys,  securities, 
or  other  property  belonging  to  the  institution  ;  he  is  simply 
possessed  of  a  right  to  participate  in  the  profits  while  the  busi- 
ness is  carried  on,  and  in  the  property  when  the  corporation  is 
wound  up  and  dissolved.  It  would  seem,  therefore,  that  tax- 
ing a  shareholder  would,  in  no  sense,  be  taxing  the  bank,  or 
the  property  of  the  bank.  But  the  question  has  received  a 
judicial  examination  and  answer.  The  Act  of  Congress  of 
1864,  relating  to  the  National  Banks,  provides  in  §  41,  for  tax- 
ation by  the  United  States.  The  same  section  adds  :  "  Pro- 
vided that  nothing  in  this  act  shall  be  construed  to  prevent  all 
the  shares  in  any  of  said  associations,  held  by  any  person  or 
body  corporate,  from  being  included  in  the  valuation  of  the 
personal  property  of  such  person  or  corporation,  in  the  assess- 
ment of  taxes  imposed  by  or  under  state  authority."  Farther 
provisions  were  inserted  to  prevent  the  states  from  discrimi- 
nating, in  the  imposition  of  such  taxes,  against  these  national 
banks.  New  York  proceeded  to  lay  a  tax  on  the  shareholders. 
The  case  of  The  City  of  Utica  v.  Churchill2  involved  the 
legality  of  the  state  law  and  the  proceedings  under  it.  The 
whole  capital  stock  of  the  national  bank  referred  to  in  the 
case  was  invested  in  United  States  securities.  The  Court  of 
Appeals  of  New  York  affirmed  the  legality  of  this  tax.     The 

1  2  Black's  R.  620.  2  6  Tiffany's  (33  N.  Y.)  R.  161. 

13 


194  LIMITATIONS   UPON    THIS    POWER. 

shareholders  thereupon  carried  the  case  to  the  Supreme  Court 
of  the  United  States,  wherein  it  appeared  under  the  nan:"  of 
Van  Allen  v.  The  Assessors.1  That  court,  also,  sustained  the 
power  of  the  states  to  lav  a  tax  on  the  shareholders.  It  held 
that  the  act  of  Congress  conferred  a  complete  authority  to  im- 
pose the  tax,  in  respect  to  the  full  amount  of  the  shares, 
although  the  capital  stock  of  the  bank  might  he  partially  or 
wholly  invested  in  the  bonds  and  other  evidences  of  the  public 
debt  of  the  United  States.  The  whole  reasoning  of  the  court 
would  sustain  the  exercise  of  the  power  by  the  states,  even 
though  the  law  of  Congress  had  been  silent  upon  the  subject. 
Chief  Justice  Chase,  and  Justices  Wayne  and  Swayne  dis- 
sented, and  construed  the  act  of  Congress  as  empowering  the 
states  to  tax  the  shareholders  in  respect  only  of  such  part  of 
the  bank  capital  as  should  not  be  invested  in  public  securities. 

The  same  question  was  again  presented,  with  a  similar  re- 
sult, to  the  New  York  court  in  The  People  v.  Commissioners 
of  Taxes,2  and  their  judgment  was  again  affirmed  by  the 
Supreme  Court  of  the  United  States.3 

§  305.  The  conclusions  to  be  drawn  from  these  cases  may 
be  summarily  stated  as  follows.  States  may  exert  their  power 
of  taxation  generally  upon  persons  and  property  within  their 
boundaries ;  but  they  cannot  thereby  interfere  with  any  func- 
tions of  the  nation.  They  cannot  tax  national  property ;  or 
the  evidences  of  the  national  debt  owned  by  individuals  ;  or 
banks  incorporated  by  the  nation  as  a  part  of  its  general 
scheme  of  finance  ;  or  salaries  of  national  officers.  In  a  word, 
all  the  means  which  are  employed  by  the  nation  to  carry  on 
its  legitimate  functions  are  entirely  beyond  the  reach  of  the 
several  states. 

On  the  other  hand  Congress  may  tax  any  thing  created  by 
the  separate  states,  which  is  property  or  a  franchise  in  the 
hands  of  individuals ;  banks  and  all  other  corporations  ;  state 
stocks  and  other  securities  in  the  hands  of  private  owners  ;  the 
proceedings  in  state  courts.  Nothing,  certainly,  exhibits  in  a 
stronger  light  the  inherent  distinction  between  the  paramount 

i  3  Wallace's  R.  573.  2  8  Tiffany's  (35  N.  Y.)  R.  423. 

3  4  Wallace's  R.  244. 


POWER   OF  THE   STATES    TO   TAX.  195 

Etrpremaiy  of  the  nation  and  the  subordination  of  the  states, 
than  this  comparison  between  their  respective  powers  of  tax- 
ation. 

§  306.  A  cun'ous  and  important  question  has  arisen  from 
the  exercise  by  Congress  of  its  power  to  tax,  which  may  be 
referred  to  in  this  connection.  When  the  United  States  has 
established  a  system  of  excise  duties,  and  among  other  things 
has  required  that  persons  carrying  on  certain  kinds  of  business 
shall  pay  a  license  fee,  and  take  out  a  license,  can  a  state  inter- 
fere with  persons  who  have  complied  with  these  requirements, 
or  prevent  them  from  prosecuting  the  particular  business  for 
which  they  have  received  a  national  license  ?  No  case  has 
arisen  which  answers  the  question  thus  put;  for  the  internal 
revenue  law  specially  declares  that  "no  such  license  shall  be 
construed  to  authorize  "  the  carrying  on  a  business  or  trade 
"  within  any  state  or  territory  in  which  it  is  or  shall  be  spec- 
ially prohibited  by  the  laws  thereof,  or  in  violation  of  the  laws 
of  any  state  or  territory."  In  McGuire  v.  The  Common- 
wealth,1 the  Supreme  Court  held,  under  this  section  of  the 
law  of  Congress,  that  a  person  licensed  to  sell  liquors  in  Mas- 
sachusetts, was  still  controlled  by  the  prohibitory  legislation  of 
that  state ;  although  a  strong  attempt  was  made  at  the  bar  to 
convince  the  court  that  these  provisions  of  the  revenue  law 
were  repugnant  to  the  rest  of  the  act,  were  unconstitutional 
and  void.     The  same  doctrine  has  since  been  reaffirmed. 

II.     Express  Limitations  upon  the  Power  of  the  States  to  Tax. 

§  307.  We  are  now  to  examine  the  effect  of  those  express 
restrictions  upon  the  taxing  powTer  of  the  states,  contained  in 
the  Constitution.  States  may  levy  and  collect  no  duties  upon 
imports  or  exports,  except  such  as  are  absolutely  necessary  for 
the  execution  of  their  inspection  laws,  and  no  tonnage  duties. 
The  reason  of  this  limitation  is  plain.  As  the  United  States 
government  was  intended  to  have  the  control  of  every  thing 
pertaining  to  commerce,  any  interference  by  the  states  with 
.his  subject,  any  attempt  on  their  part  to  impose  duties  on 
i  3  Wallace's  R.  387. 


196  EXPRESS  LIMITATIONS  UPON  THIS  POWER. 

articles  imported  or  exported,  would  produce  all  the  disordei 
which  the  Constitution  was  framed  to  obviate. 

Many  cases  have  arisen  in  which  a  construction  has  been 
given  to  state  statutes  that  seemed  to  trench  upon  these  pro- 
visions of  the  organic  law.  The  questions  which  have  been 
discussed  are,  (1)  whether  these  statutes  did  in  effect  lay 
duties  on  imports  or  exports,  so  as  to  bring  them  within  the 
general  restriction  ;  and  (2)  whether  they  were  measures  ab- 
solutely necessary  to  carry  into  execution  the  local  inspection 
laws,  and  therefore  within  the  exception.  As  the  limitation 
under  consideration  applies  exclusively  to  a  particular  class  of 
taxes,  the  whole  subject  is  intimately  connected  with  the  regu- 
tation  of  commerce. 

§  308.  What  classes  of  legislation  are  embraced  under  the 
denomination  of  inspection  laws  ?  Strictly  speaking,  inspection 
laws  provide  for  a  service  to  be  performed  on  land,  upon 
articles  within  the  country,  the  product  of  growth  or  manu- 
facture. The  object  of  such  service  is  to  improve  the  quality 
of  the  articles  and  fit  them  for  exportation  or  for  domestic  use. 
The  tax  or  duty  necessary  for  the  execution  of  inspection 
laws  —  using  the  term  in  the  sense  now  described  —  would 
be  in  the  nature  of  a  fee  or  fixed  compensation  paid  for  this 
service. 

§  809.  The  first  of  a  series  of  cases  in  the  Supreme  Court 
of  the  United  States  giving  construction  to  the  clauses  in 
question  is  that  of  Brown  v.  The  State  of  Maryland.1  The 
legislature  of  Maryland  had  passed  a  statute  requiring  all  im- 
porters of  foreign  goods  by  the  bale  or  package,  to  take  out  a 
license  for  which  they  were  to  pay  a  prescribed  fee ;  and  in 
case  of  refusal  they  were  to  be  subjected  to  certain  penalties. 
The  constitutionality  of  this  act  was  brought  before  the  court, 
and  the  statute  was  held  to  be  invalid,  because  it  did,  in  fact, 
impose  a  duty  on  imports,  and  it  was  not  claimed  to  be  in  aid 
of  any  measures  that  are  included  within  the  general  descrip- 
tion of  inspection  laws.  The  opinion  of  the  court,  given  by 
C.  J.  Marshall,  is  too  long  to  be  quoted  or  condensed,  and  wil. 
be  referred  to  again  in  Section  III.  of  this  chapter.  One  im- 
i  12  Wheaton'sR.  419. 


POWER   OF   THE   STATES   TO   TAX.  197 

portant  rule  was  laid  down  which  must  not,  however,  be  passed 
by  in  this  connection.  An  article  authorized  by  Congress  to 
be  imported,  continues  to  be  a  part  of  the  foreign  commerce 
of  the  country,  while  it  remains  in  the  hands  of  the  importer 
for  sale,  in  the  original  bale,  package,  or  vessel,  in  which  it  was 
imported.  The  authority  given  to  import  necessarily  implies 
the  right  to  sell  the  imported  article  in  the  form  and  shape  in 
which  it  was  imported  ;  and  no  state,  either  by  direct  assess- 
ment or  by  requiring  a  license  from  the  importer  before  he  is 
permitted  to  sell,  can  impose  any  burden  upon  him  or  the 
property  beyond  what  the  law  of  Congress  itself  had  imposed. 
But  when  the  original  package  is  broken  up  for  use  or  for 
retail  by  the  importer,  and  also  when  the  commodity  has 
passed  from  his  hands  into  the  hands  of  a  purchaser,  it  ceases 
to  be  an  import,  or  a  part  of  foreign  commerce,  and  may  be 
taxed  for  state  purposes. 

§  310.  In  the  year  1847  the  Supreme  Court  considered  and 
determined  a  series  of  cases  known  as  the  License  Cases.1 
The  facts  were  somewhat  complicated,  and  varied  in  the  differ- 
ent cases.  I  shall  not  attempt  to  state  these  facts  at  large. 
It  is  sufficient  to  say  that  the  controversies  arose  under  the 
license  laws  respectively  of  Massachusetts,  New  Hampshire, 
and  Rhode  Island.  These  statutes  required  a  license  fee  for 
the  sale  of  spirituous  liquors,  although  they  might  have  been 
imported,  but  did  not  apply  to  the  importer  himself.  The  cases 
turned  upon  the  validity  of  these  statutes.  Two  objections 
were  urged  against  them,  namely,  that  they  laid  duties  upon 
imports;  and  that  they  assumed  to  regulate  commerce.  The 
state  laws  were  sustained.  The  question  most  elaborately 
argued  by  counsel  and  considered  by  the  court,  was,  whether 
these  statutes  were  void  because  they  interfered  with  the 
power  of  Congress  to  regulate  commerce.  The  license  fees 
imposed  by  them  were  plainly  not  duties  upon  imports,  within 
the  meanino-  of  the  rule  laid  down  in  Brown  v.  Maryland. 

§  311.  The  Passenger  Cases2  decided  in  1849,  were  in 
nany  respects  extraordinary.  An  attempt  was  made  to  com- 
mit the  court  to  the  state  sovereignty  doctrine,  and  to  overturn 
i  5  Howard's  R.  504.  2  7  Howard's  R.  283. 


198  EXPRESS   LIMITATIONS   UPON   THIS  POWER. 

manv  of  the  decisions  which  had  upheld  the  supremacy  of  the 
general  government.  The  attempt,  however,  failed.  The 
case  holds  that,  statutes  of  New  York  and  of  Massachusetts 
imposing  a  tax  upon  alien  passengers  arriving  within  those 
states  were  void,  although  the  proceeds  of  the  tax  wore  appro- 
priated to  maintain  marine  hospitals. 

In  Cooley  v.  The  Port  Wardens,1  a  law  of  Pennsylvania, 
imposing  certain  fees  upon  vessels,  payable  to  the  Master 
Warden,  for  the  use  of  decayed  pilots,  was  uphold  ;  the  impost 
was  not  a  duty  upon  imports.  Both  of  these  cases,  however, 
are  principally  important  as  they  affect  the  subject  of  com- 
merce. 

The  most  recent  judgment  of  the  Supreme  Court  i*  found 
in  Almy  v.  The  State  of  California.2  It  held  that  a  .statute 
of  California  imposing  a  stamp  on  bills  of  lading  of  gold  ex- 
ported from  that  state  created  a  duty  on  exports,  and  was 
therefore  void. 

§  312.  The  cases  which  have  been  referred  to  show  that 
the  Supreme  Court  of  the  United  States,  at  an  early  day,  took 
high  national  ground  upon  the  subject  of  taxation  by  the 
states,  and  has  never  receded  from  that  position.  On  the 
Dther  hand,  it  has  given  a  fair  and  equitable  construction  to 
the  exceptions  contained  in  the  organic  law,  and  has  allowed 
to  the  separate  commonwealths  as  free  and  full  exercise  of  the 
great  function  of  taxing  as  is  necessary  for  their  existence  as 
subordinate  political  societies. 

SECTION  II. 

THE  POWER  TO  BORROW  MONEY. 

§  313.  The  second  general  grant  of  legislative  power  con- 
tained in  Section  VIII.  of  Article  I.  is  in  these  words : 
"  Congress  shall  have  power  ....  to  borrow  money 
on  the  credit  of  the  United  States."  In  this  immediate  con- 
nection should  be  read  a  clause  of  Section  X.,  as  follows  : 
M  No  state  shall  emit  bills  of  credit,  or  make  any  thing  but 
gold  and  silver  coin  a  tender  in  payment  of  debts." 

1  12  Howard's  R.  299.  2  24  Howard's  R.  169. 


THE  POWER   TO   BORROW   MONEY.  199 

But  few  questions  strictly  legal  in  their  character  have 
arisen,  or  can  arise,  under  this  provision  authorizing  Congress 
to  borrow  money.  The  language  is  as  broad  as  possible  ;  it 
contains  in  itself  no  limitations.  The  extent  of  the  borrowing 
power  must  be,  and  is,  commensurate  with  the  wants  of  the 
government.  For  whatever  purposes  money  may  be  expended, 
money  may  be  borrowed  to  meet  the  expenditure.  Nay,  even 
though  the  money  should  be  appropriated  by  Congress  to  some 
object,  or  in  some  manner,  not  warranted  by  the  organic  law, 
this  act  of  transgression  could  not,  according  to  any  principles 
of  law  or  justice,  invalidate  the  arrangement  by  which  such 
money  might  have  been  borrowed.  It  cannot  be  that  the 
public  creditor  is  bound  to  see  that  the  national  legislature 
makes  a  proper  use  of  the  moneys  loaned  to  it.  Practically, 
therefore,  the  capacity  of  Congress  to  borrow  money  is  abso- 
lutely unlimited  ;  questions  respecting  its  use  are  questions  of 
policy  and  not  of  constitutional  power. 

§  814.  By  what  particular  methods  and  measures  may  Con- 
gress exercise  the  power  of  borrowing  ?  The  answer  is  easy. 
Applying  the  rule  which,  as  has  been  shown,  is  applicable  to 
all  the  general  grants  of  the  Constitution,  Congress  may  adopt 
such  means  as  it  thinks  best,  which  are  conducive  to  the  effi- 
cient execution  of  the  power  ;  may  pass  all  laws  which  have 
a  tendency  to  make  the  provision  operative.  The  government 
may  go  into  the  market  and  ask  loans  from  capitalists  in  ex- 
change for  its  evidences  of  debt,  whatever  form  those  evi- 
dences may  assume,  —  scrip  of  stock,  bonds,  treasury  notes, 
certificates  of  indebtedness,  and  the  like.  This  has  been  the 
usual  mode,  but  it  is  by  no  means  the  only  one  in  which 
money  can  be  borrowed.  Of  course  the  legislature  may  also 
adopt  all  ancillary  measures  which  have  the  effect  to  render 
its  obligations  more  certain  and  secure  in  the  hands  of  public 
creditors  ;  it  may  declare  certain  acts  to  be  crimes,  and  affix 
punishments  upon  the  offenders.  As  a  long  series  of  decisions 
made  by  the  Supreme  Court  has  settled  the  rule  that  the 
states  may  not  tax  the  public  securities  of  the  nation  in  the 
hands  of  owners,  a  fortiori  Congress  has  power  by  a  declara- 
tory statute  to  exempt  them  from  such  taxation. 


200  NATIONAL   BANKS. 

§  315.  But  the  power  to  burrow  money  may  be  exercised 
by  the  use  of  measures  and  methods  whose  relation  to  the  end 
proposed  does  not  seem  to  be  so  immediate  and  direct  as  in 
the  cases  last  referred  to.  At  a  very  early  day  in  our  history 
it  was  thought  proper  to  establish  a  United  States  Bank,  for 
the  purpose  of  assisting  the  government  in  the  management  of 
its  li nances.  The  right  in  Congress  to  create  such  an  institu- 
tion  was  partly  rested  upon  the  general  grant  of  power  to 
borrow  money  ;  the  bank  was  said  to  be  a  means  conducive  to 
this  end,  —  a  legitimate  measure  for  the  execution  of  this 
attribute.  I  do  not  purpose  to  enter  into  the  discussion  of  the 
question  whether  Congress  has  authority  to  charter  such  a 
bank  ;  much  less  to  inquire  into  the  policy  of  such  an  act. 
It  is  enough  to  say  that  the  Supreme  Court  has  most  deliber- 
ately affirmed  the  power  in  the  great  cases  of  McCulloch  v. 
Maryland,1  and  Osborn  v.  The  Bank  of  the  United  States  ; 2 
and  the  rule  may  be  considered  as  settled  in  that  court,  and  of 
course  in  the  state  tribunals. 

The  validity  of  the  statute  creating  the  present  system  of 
National  Banks  must  be  rested  upon  the  same  principles.  In- 
deed, these  institutions  seem  to  have  a  more  intimate  connec- 
tion with  the  function  of  borrowing  money,  and  to  be  a  more 
direct  means  of  exercising  that  function.  A  large  proportion 
of  their  capital  must  be  invested  in  the  national  securities,  and 
thus  a  very  extensive  demand  for  those  securities  is  created, 
and  borrowing  by  the  government  is  made  easier. 

§  316.  But  another  and  much  more  difficult  question  has 
arisen.  Congress,  impelled  by  what  were  considered  to  be 
the  necessities  of  the  situation,  resorted  to  a  measure  which 
would  hardly  have  been  accepted  under  the  ordinary  circum- 
stances of  peace.  In  the  exercise  of  its  power  to  borrow 
money,  the  legislature  provided  for  the  issue  of  treasury  notes 
designed  to  circulate  generally  as  money.  No  question  has 
been  raised,  no  doubt  has  been  expressed,  as  to  the  legality  of 
this  act.  These  notes  are  not  different  in  kind  from  certifi- 
cates of  stock,  or  bonds  ;  they  are  promises  to  pay,  and  there* 
fore  evidences  of  debt.  Paying  them  out  by  the  government 
1  4  Wheaton's  R.  316.  2  9  Wheaton's  R.  738. 


THE  POWER  TO  BORROW  MONEY.  201 

for  value  received  by  it  of  some  kind,  is  really  and  directly 
borrowing  money.  Had  the  statute,  therefore,  stopped  here, 
not  a  suspicion  could  have  'been  cast  upon  its  validity.  But 
Congress  went  further,  and  declared  that  these  notes  should 
be  a  legal  tender  for  the  payment  of  all  debts  due  to  the 
United  States,  with  a  few  specified  exceptions ;  and  also  for 
the  payment  of  all  private  debts.  In  respect  to  one  of  these 
provisions  there  can  be  no  dispute  :  the  government  may  law- 
fully make  these  its  promises  a  legal  tender  in  payment  of 
debts  to  itself.  This  point  is  universally  conceded.  Indeed, 
the  legislature  has,  from  time  to  time,  since  the  adoption  of 
the  Constitution,  resorted  to  such  an  expedient,  and  its  author- 
ity to  do  so  has  never  been  denied.  The  controversy  upon 
the  statute  is  narrowed  down  to  a  single  question  :  Is  the  pro- 
vision declaring  these  treasury  notes  to  be  a  legal  tender  in 
the  payment  of  private  debts,  a  lawful  and  constitutional  exer- 
cise of  any  general  power  conferred  upon  Congress  ? 

§  817.  The  Supreme  Court  of  the  United  States  has  not  as 
yet  formally  considered  this  subject,  and  passed  upon  the 
legality  of  the  measure.  In  several  of  the  state  courts,  how- 
ever, cases  necessarily  and  directly  involving  the  question 
have  arisen  and  been  decided.  In  some  of  these  courts  the 
authority  of  Congress  to  enact  the  legal  tender  clause  has 
been  positively  affirmed,  in  others  as  positively  denied.1  In 
the  cases  of  Metropolitan  Bank  v.  Van  Dyck,  and  Meyer  v. 
Roosevelt,2  decided  by  the  Court  of  Appeals  in  New  York,  the 
whole  subject  was  examined  in  a  most  thorough  and  exhaus- 
tive manner,  and  it  is  proper  to  state  in  outline  the  arguments 
by  which  the  court  and  the  dissenting  judges  respectively 
reached  their  conclusions.  The  authority  of  the  legislature  to 
affix  the  compulsive  attribute  of  legal  tender  to  the  treasury 
notes  was  rested  upon  the  general  grant  of  power  to  borrow 

1  The  following  are  some  of  the  cases  reported  :   In  favor  of  the  validity, 
Thaver  v.  Hedges,  23  Indiana  R.  141  ;  Brown  v.  Wilch,   26  Indiana  R. 
116;  Lick  v.   Faulkner,   25   California  R.  404;    Hintrager  v.  Bates,  18 
Iowa   R.   174;    Van  Husen  v.   Kanouse,  IS  Michigan  R.  303.     Opposed 
Thayer  v.  Hedges,  22  Indiana  R.  282.  ' 

2  13  Smith's  (27  N.  Y.)  R.  400. 


202  LEGAL  TENDER  NOTES. 

money.  The  position  was  first  broadly  taken  that  any  means 
and  methods  which  conduce  to  the  end  permitted  by  the  or- 
ganic law,  are  themselves  legitimate  ;  that  Congress  is  the 
sole  judge  as  to  such  means  ;  that  treasury  notes  are  evidences 
of  debt,  and  issuing  them  is  in  fact  borrowing  money  ;  that 
the  peculiar  attribute  annexed  to  them  has  a  natural  and  direct 
tendency  to  enhance  their  value,  to  give  them  greater  efficacy 
as  a  circulating  medium,  and  is  therefore  a  measure  by  which 
the  borrowing  of  money  is  made  easier.  The  case  was  held 
to  be  completely  within  the  spirit  of  those  decisions  of  the 
national  court  which  declared  the  public  securities  of  the  gov- 
ernment to  be  free  from  state  taxation.  One  judge,  Mr. 
Justice  Marvin,  also  thought  that  the  authority  of  Congress 
might  be  referred  to  its  power  to  regulate  commerce.  The 
objection  that  the  statute  operated  directly  to  impair  the  obli- 
gation of  contracts,  was  met  by  two  answers  :  In  the  first 
place,  the  position  was  denied  ;  in  the  second  place,  it  was 
claimed  that  Congress  was  not  forbidden  to  pass  laws  impair- 
ing the  obligation  of  contracts.  Two  eminent  judges  dis- 
sented  —  Mr.  Justice  Denio  and  Mr.  Justice  H.  R.  Selden. 
Their  views  were  briefly  as  follows :  After  admitting  that 
Congress  might  issue  treasury  notes  designed  for  circulation  as 
money,  and  might  declare  them  to  be  legal  tender  in  payment 
of  debts  to  the  government,  they  denied  that  any  authority 
existed  to  force  these  notes  upon  private  persons  in  payment 
of  private  debts.  They  urged  that  a  particular  measure  of 
legislation,  to  be  within  the  scope  of  Congressional  powers, 
must  have  some  direct  relation  to  the  end  which  the  Consti- 
tution expressly  authorizes  ;  that  it  is  not  sufficient  for  such 
relation  to  be  merely  incidental  or  speculative.  They  claimed 
that  the  compulsive  attribute  annexed  to  these  evidences  of 
debt  had  no  direct  relation  with  the  power  to  borrow  or  the 
act  of  borrowing.  They  chiefly  relied,  however,  on  the  posi- 
tion that  Congress  has  no  capacity  to  interfere  with  the  pri- 
vate contracts  of  individuals,  any  further  and  in  any  other 
manner  than  is  directly  authorized  by  the  organic  law  ;  that 
the  control  over  private  agreements  is  a  matter  peculiarly 
vithin  state  jurisdiction. 


POWER   OF   THE   STATES   TO   BORROW   MONEY.        203 

§  318.  The  several  states,  as  bodies  politic,  have  also  the 
3apacity  and  power  to  borrow  money  to  any  extent  they  may 
deem  proper.  The  Constitution  of  the  United  States  places 
no  restrictions  upon  them  in  respect  to  the  amount  of  their 
loans,  —  although  their  own  constitutions  very  generally  re- 
strain their  legislatures  by  very  positive  and  minute  provis- 
ions. But  the  several  states  are  limited  by  the  organic  law 
in  respect  to  the  means  which  they  may  adopt  for  borrowing 
money.  They  may  not  issue  bills  of  credit,  or  make  any  thing 
but  gold  and  silver  coin  a  tender  in  payment  of  debts.  The 
states  are  thus  forbidden  to  emit  their  treasury  notes  or  other 
evidences  of  indebtedness  designed  to  circulate  as  money; 
nor  may  they  affix  the  legal  tender  attribute  to  their  obliga- 
tions of  any  form,  or  to  the  obligations  of  banks  or  private 
individuals. 

§  319.  The  considerations  which  led  to  the  adoption  of  these 
and  other  similar  limitations  upon  the  power  of  the  several 
states,  were  very  clearly  and  concisely  stated  by  Mr.  Justice 
Marvin,  in  The  Metropolitan  Bank  v.  Van  Wyck,  already  re- 
ferred to.  He  says  :  x  "  Considering  the  subject  or  object  of 
these  powers,  and  the  circumstance  that  the  people  were  mem- 
bers of  other  bodies-politic  possessing  certain  powers  in  com- 
mon with  all  independent  states,  which  powers,  if  exercised 
by  them,  would  embarass,  derange,  and  might  effectually  de- 
stroy, the  common  system  established  by  the  federal  govern- 
ment, it  was  absolutely  necessary  to  impose  certain  prohibi- 
tions upon  these  other  bodies-politic  —  the  states.  Among 
these  prohibitions  I  have  always  regarded  —  so  far  as  the 
peace  of  the  states  and  the  harmony  of  the  system  are  con- 
cerned —  those  which  prohibit  the  states  from  making  any 
thing  but  gold  or  silver  coin  a  tender  in  payment  of  debts, 
and  from  passing  any  law  impairing  the  obligation  of  contracts. 
\_A  fortiori,  that  which  forbids  the  issuing  of  bills  of  credit.] 
If  these  powers  had  been  suffered  to  remain  with  the  states, 
t  is  quite  obvious  that  difficulties  between  the  people  of  dif- 
ferent states  would  soon  have  arisen,  endangering  peace  and 
narmony  between  them.  Distrust  would  have  existed,  and 
1  13  Smith's  (27  N.  Y.)  R.  515. 


204  BILLS   OF   CREDIT. 

there  would  have  been  an  absence  of  that  confidence  neces- 
sary as  a  base  for  commercial  and  other  intercourse  between 
them.  Independent  nations  may  protect  their  merchants  and 
citizens  from  the  frauds  of  other  nations  consequent  upon  a 
debasement  of  the  coin  or  a  change  of  the  measures  of  value 
in  which  debts  are  to  be  paid  [or  the  depreciation  of  a  national 
paper  currency],  or  for  a  neglect  or  refusal  to  pay,  by  a  resort 
to  war.  But  the  states  have  no  right  or  power  to  make  war 
upon  each  other,  and  they  are  prohibited  from  doing  certain 
things  which  might  be  a  just  cause  of  war ;  and  the  people 
have  entrusted  the  regulation  of  these  subjects  to  a  general 
common  government." 

§  320.  The  meaning  of  the  term  "  bills  of  credit,"  as  used 
in  the  Constitution,  has  been  settled  by  the  judgments  of  the 
Supreme  Court  of  the  United  States.  Bills  of  credit  plainly 
do  not  include  all  written  contracts  by  which  a  state  binds 
itself  to  pay  money  at  a  future  day  in  consideration  of  services 
rendered,  or  loans  made.  Should  this  broad  signification  be 
given  tu  the  term,  the  states  would  practically  be  deprived  of 
the  ability  to  borrow  money.  Certificates  of  public  stock,  and 
public  bonds,  do  not,  therefore,  fall  under  the  prohibition. 
Bills  of  credit  are  written  evidences  of  debt,  payable  at  a  future 
day,  issued  and  intended  to  circulate  as  money.  Nor  is  it 
necessary  that  the  state  should  declare  them  to  be  monev,  or 
to  be  receivable  in  payment  of  debts,  or  to  be  a  legal  tender. 
It  is  sufficient  that  they  be  issued  by  the  state,  on  its  credit, 
and  designed  and  made  appropriate  for  circulation  through  the 
community.  This  definition  and  description  was  formally 
given  by  the  Supreme  Court  of  the  United  States  in  the  case 
of  Craig  v.  The  State  of  Missouri,1  in  which  it  was  held  that 
certain  certificates  issued  by  state  officers,  although  not  made 
a  legal  tender,  or  directed  to  pass  as  money  or  currency,  were 
bills  of  credit,  and  that  a  statute  of  the  state  authorizing  their 
issue  was  void. 

§  321.  The  question  again  arose  in  a  subsequent  case,  Bris- 
coe v.  The  Bank  of  the  Commonwealth  of  Kentucky.2     The 
Stat?  of  Kentucky  had  incorporated  the  bank,  and  declared  it 
*  4  Peters'  R  410.  2  11  Peters'  ft.  2i7. 


THE   POWER   TO   REGULATE   COMMERCE.  205 

U)  be  "  in  behalf  of  the  commonwealth."  The  president  and 
directors  were  to  be  chosen  by  the  legislature.  The  bank  was 
authorized  to  issue  notes  which  were  to  be  receivable  in  pay- 
ment of  debts  to  the  state.  Other  provisions  of  the  statute 
disclosed  the  intimate  connection  between  the  bank  and  the 
state  government,  and  the  virtual  control  of  the  institution  by 
the  latter.  The  Supreme  Court,  notwithstanding  a  very  vigor- 
ous dissent  from  Mr.  Justice  Story,  held  the  notes  of  the  bank 
not  to  be  bills  of  credit,  and  the  statute  authorizino-  their  issue 
not  to  conflict  with  the  prohibition  of  the  Constitution.  The 
grounds  of  this  judgment  were,  that  the  bank  and  the  state 
were  distinct ;  that  the  notes  were  issued  by  the  former,  upon 
its  credit  alone,  and  could  only  be  enforced  against  it ;  that 
they  were  not  issued  by  the  state,  and  contained  no  pledge  of 
the  state's  credit.  The  same  view  was  taken  in  Darrington  v. 
The  Bank  of  Alabama,1  in  reference  to  a  bank  of  which  the 
state  was  the  only  stockholder.  It  seems  difficult  to  sustain 
the  power  of  a  state  to  permit  any  bank,  wdiether  a  private  or 
governmental  institution,  to  issue  circulating  notes  ;  for  what 
the  state  cannot  do  directly,  by  its  own  immediate  act,  it  should 
not  be  able  to  do  indirectly,  by  means  of  an  institution  created 
by  itself. 

SECTION  III. 

THE   POWER   TO    REGULATE    COMMERCE. 

§  321.  The  next  great  power  conferred  upon  Congress  is 
that  relating  to  commerce.  The  constitutional  grant  is  in 
the  following  words :  "  Congress  shall  have  power  .... 
8.  To  regulate  commerce  with  foreign  nations,  and  among  the 
several  states,  and  with  the  Indian  tribes."  Upon  this  general 
grant  a  limitation  is  placed  :  "  No  preference  shall  be  given, 
by  any  regulation  of  commerce  or  revenue  to  the  ports  of  one 
state  over  those  of  another ;  nor  shall  vessels  bound  to  or  from 
one  state,  be  obliged  to  enter,  clear,  or  pay  duties  in  another." 
Many  of  the  provisions  on  the  subject  of  taxation,  both  relating 
tc  the  nation  and  to  the  states,  which  were  cited  and  com- 
i  13  Howard's  R.  12. 


206  NATURE   OF  THE  POWER. 

mented  upon  in  Section  I.  of  tin's  chapter,  have  also  an  inti- 
mate connection  with  the  subject  of  commerce.  The  laying 
and  collection  of  duties  on  imports  and  exports,  with  all  the 
necessary  retinue  of  incidents,  are  plainly  a  part  of  the  means 
appropriate  to  the  regulation  of  commerce. 

§  322.  One  great  cause  of  the  utter  prostration  of  business 
in  the  Confederation  which  preceded  the  present  Union,  was 
the  fact  that  the  Congress  had  no  power  whatever  over  the 
subject  of  commerce.  Each  state  made  such  laws  as  it  saw 
fit.  Under  the  injurious  and  destructive  influence  of  state 
pride,  unseemly  rivalries  sprang  up;  one  commonwealth  com- 
peted with  another;  one  attempted  by  more  favorable  naviga- 
tion laws  and  reduced  duties,  to  increase  its  own  trade  at  the 
expense  of  its  sister  states.  There  was  no  unity,  no  bond  of 
common  feeling  or  interest. 

It  will  also  be  remembered  that  the  very  first  movement 
towards  an  amendment  of  the  original  Articles  of  Confedera- 
tion, consisted  in  a  proposal  to  give  Congress  more  enlarged 
powers  over  the  subject  of  commerce.  When  the  convention 
finally  assembled,  it  was  universally  conceded  that  this  matter, 
at  least,  must  be  committed  to  the  general  government. 

In  considering  the  grant  of  power  to  regulate  commerce,  I 
shall  arrange  the  various  questions  in  order  in  two  general 
divisions:  first,  The  nature  of  the  power  ;  or  whether  it  rests 
solely  in  the  nation,  or  is  shared  also  by  the  several  states ; 
and,  secondly,  The  extent  of  the  power  ;  or  what  particular 
measures  Congress  may  adopt  in  execution  thereof. 

First.     The  Nature  of  the  Power. 

§  323.  We  are  to  inquire  whether  the  power  to  regulate 
commerce  is  lodged  exclusively  in  Congress,  or  whether  it  is 
held  concurrently  by  the  nation  and  the  states.  There  are 
three  theories  of  constitutional  construction.  (1.)  One  theory 
regards  the  capacity  as  vested,  by  the  mere  language  of  the 
Constitution,  exclusively  in  Congress  ;  and  asserts  that  the 
states  may  enact  no  laws  which  ai'e,  in  fact,  regulations  of 
commoice,  wdiether  or  not  the  national  legislature  has  passed 


THE   POWER   TO   REGULATE   COMMERCE.  207 

Statutes  on  the  same  particular  subject.  (2.)  A  second  theory 
denies  that  the  power  is  exclusive,  and  insists  that  the  states 
may  at  all  times  proceed  to  regulate  commerce,  even  though 
Congress  has  already  assumed  to  act.  In  other  words,  this 
theory  maintains,  as  a  general  doctrine  of  constitutional  con- 
struction, that  United  States  laws  and  state  laws  touching  the 
self-same  subject-matter  may  exist  side  by  side,  and  be  exe- 
cuted together,  except  in  the  few  cases  where  the  several  states 
are  expressly  forbidden  te  legislate.  (3.)  The  third  theory 
is,  in  a  measure,  a  compromise  between  these  two  extremes. 
It  concedes  that  when  Congress  has  acted,  and  while  its  statute 
remains  operative,  the  states  are  debarred  from  taking  any 
steps  on  or  about  the  subjects  embraced  within  the  national 
legislation  ;  but  insists  that  when  Congress  has  not  acted  in 
reference  to  any  particular  subject-matter  involved  in  the  gen- 
eral grant  of  power,  the  field  is  open  for  state  legislation.  In 
other  words,  this  system  of  construction  denies  that  the  mere 
constitutional  grant  ipso  facto  confers  exclusive  jurisdiction 
upon  the  national  legislature  ;  and  declares  that  only  the  pro- 
visions of  the  organic  law,  and  the  statute  of  Congress  passed 
in  pursuance  thereof  taken  together,  can  vest  the  entire  control 
over  the  subject  in  the  general  government. 

§  32-1.  I  shall  not  stop  to  discuss  the  second  of  these  theo- 
ries. It  is  the  direct  outgrowth  of  that  more  general  system 
of  interpretation  which  would  make  the  states  sovereign,  and 
the  Union  a  partnership.  If  generally  adopted,  it  would  soon 
bring  back  the  calamitous  condition  of  the  early  Confederacy. 
It  has  never  been  assented  to  by  a  majority  of  the  Supreme 
Court,  or  by  many  of  the  state  tribunals.  A  few  judges  only 
have  asserted  and  maintained  this  dogma. 

The  other  theories  have  each  been  supported  by  eminent 
judges,  jurists,  and  statesmen.  I  think  that  the  Supreme 
Court  of  the  United  States  has  hardly  been  consistent  upon 
this  point.  At  an  early  day  some  of  its  members  plainly  and 
anecmivocally  advocated  the  construction  that  the  grant  of 
power  to  regulate  commerce  was,  by  its  verv  terms,  absolutely 
exclusive  ;  that  the  states  could,  in  no  case,  assume  to  exer- 
cise it.     It  has  often  been  claimed  that  the  court  itself  was 


208  WHAT  IS   COMMERCE? 

committed  to  this  position,  although  the  claim  lias  been  op- 
posed. Certainly  at  a  later  period  the  court  abandoned  this 
high  ground,  and  gave  in  its  adherence  to  the  third  system  of 
interpretation.  In  the  very  latest  reported  case  involving  the 
relations  of  the  nation  and  the  states  to  each  other,  (1865,) 
language  is  used  which  would  seem  to  imply  that  the  Supreme 
Court  had  receded  still  further  from  its  ancient  doctrine,  and 
was  willing  to  accord  greater  powers  of  legislation  to  the  states 
than  had  previously  been  allowed.  It  may  be,  however,  that 
the  change  is  not  in  the  formal  statement  of  the  rule,  but  in 
its  application  under  new  circumstances  to  new  states  of  fact. 

§  825.  What  is  the  commerce  which  Congress  has  the  power 
to  regulate  ?  C.  J.  Marshall  devotes  a  considerable  space  in 
one  of  the  cases  to  be  quoted  hereafter,  to  prove  that  commerce 
includes  not  only  traffic,  or  the  interchange  of  commodities, 
but  navigation,  or  the  transit  of  goods  from  one  country  to 
another.  Hautefeuille,  one  of  the  latest  French  writers  on 
international  law,  labors  with  some  diligence  to  show  that  com- 
merce consists  not  only  in  navigation  or  transit,  but  also  in 
interchange  or  traffic.1  It  would  seem  that  both  these  propo- 
sitions were  self-evident.  In  fact,  the  word  as  commonly  used, 
and  as  employed  in  the  Constitution,  expresses  two  ideas,  em- 
braces two  elements,  both  necessary  to  its  full  meaning,  navi- 
gation or  transit,  and  interchange  or  traffic.  Regulations  of 
commerce,  therefore,  may  be  rules  governing,  or  applying  to, 
either  or  both  these  elements ;  they  are  no  less  regulations  of 
commerce  because  they  relate  to  but  one.  A  statute  making 
rules  respecting  the  ownership  and  use  of  shipping  is  a  regula- 
tion of  commerce,  although  it  affects  one  element  only,  that 
of  navigation  ;  a  statute  providing  for  the  deposit  of  imported 
goods  in  public  bonded  warehouses,  is  also  a  regulation  of  com- 
merce, although  it  applies  only  to  the  other  element,  inter- 
change or  traffic.  These  propositions  are  sustained  by  all  the 
cases  which  involve  the  question,  as  will  be  seen  in  the  sequel. 

§  326.  But  the  Constitution  does  not  confer  upon  Congress 
an  absolute  and  unlimited  power  over  commerce.  Only  that 
with  foreign  nations,  among  the  several  states,  and  with  the 
1  Droits  et  Devoirs  des  Nations  Neutres,  torn.  1,  tit.  2. 


THE   POWER   TO   REGULATE   COMMERCE.  209 

Indian  tribes  is  placed  under  the  control  of  the  national  legis- 
lature. The  transit  and  traffic,  therefore,  which  are  entirely 
within  the  boundaries  of  a  particular  state,  are  completely 
subject  to  the  jurisdiction  and  legislative  capacity  of  that  state. 
Congress  has  no  direct  power  over  them,  and  no  power  at  all 
except  such  as  may  result  incidentally  from  the  exercise  of 
some  other  attribute.  But  when  the  transit  or  traffic  passes 
from  one  state  to  another,  or  when  it  passes  from  any  portion 
of  the  country  to  a  foreign  nation,  the  power  of  regulation  by 
Congress  comes  in  play,  to  be  exercised  at  will.  As  a  fact, 
the  legislature  has  availed  itself  of  its  function  in  respect  to 
foreign  commerce  to  such  an  extent  as  to  shut  out  all  oppor- 
tunity to  act  by  the  several  states.  Commerce  between  the 
states  has  not  been  thus  completely  subjected  to  national  legis- 
lation. 

§  327.  Before  proceeding  to  consider  in  detail  the  relations 
between  the  general  government  and  the  states,  it  will  be 
proper  to  ascertain  the  reasons  which  led  the  framers  of  the 
Constitution  and  the  people  to  confer  the  power  over  com- 
merce upon  Congress.  These  reasons  will  aid  us  in  giving  a 
correct  construction  to  the  instrument ;  they  will  throw  light 
upon  the  intention  of  those  who  made  and  adopted  the  organic 
law,  and  upon  the  meaning  of  the  language  they  used.  The 
particular  grounds  which  were  decisive  in  favor  of  the  pro- 
visions in  question,  are  stated  in  a  most  accurate,  condensed, 
and  simple  manner  by  Mr.  Justice  Marvin,  and  I  shall  not 
hesitate  to  quote  his  language.1  "  There  existed  at  the  time 
of  the  adoption  of  the  Constitution  thirteen  states,  and  it  was 
understood  that  this  number  would  be  increased.  Each  of 
these  states  possessed  powers  common  to  all  independent 
nations,  —  of  regulating  their  own  commerce  and  the  law  of 
contracts ;  of  making  money  or  declaring  what  should  consti- 
tute money ;  and,  of  course,  what  should  pay  debts.  They 
could  emit  bills  of  credit ;  issue  their  own  paper  money,  and 
make  it  receivable  in  payment  of  debts.  They  could  discrim- 
inate, in  regulating  commerce,  in  favor  of  their  own  citizens, 
ami  against  the  citizens  of  other  states  or  nations.     Under  such 

1  Metropolitan  Bank  v.  Van  Dyck,  13  Smith's  (27  N.  Y.)  R.  508. 
14 


210         COMMERCE  DURING  THE  CONFEDERATION. 

circumstances  it  was  obvious,  indeed  it  was  already  proved, 
that  there  could  be  no  such  thing  as  harmony  touching  any  of 
those  matters.  Most  of  the  then  states  possessed  harbors  upon 
the  ocean,  and  were  engaged  in  foreign  commerce,  and  com- 
merce among  themselves.  There  could  be  no  uniformity  of 
regulations  touching  such  commerce.  Some  of  the  states  tried 
to  agree  upon  a  system  among  themselves,  and  failed.  The 
svstem  of  one  state  would  nullify  the  system  of  another.  Free 
importations  by  one  state  would  render  impracticable  the 
systems  of  other  states  imposing  duties  for  revenue  or  for  the 
protection  of  home  industry.  Embai'rassing  and  unreasonable 
regulations  touching  commerce  between  the  citizens  of  one 
state  and  those  of  other  states  would  be  made.  Each  state 
might  have  a  moneyed  system  unlike  that  of  any  other  state. 
Commerce  between  the  citizens  of  one  state  and  those  of  other 
states  might  be  prohibited  and  destroyed.  The  confederacy 
had  no  power  to  derive  a  revenue  from  importations,  nor  had 
the  states  practically  this  power,  as  they  would  never  be  able 
to  agree  upon  a  common  system,  and  owing  to  their  geograph- 
ical positions,  any  system  other  than  free  trade  would  be 
practically  nullified  by  the  action  of  the  other  states. 

§  328.  "  This  state  of  things  could  not  last.  The  people 
were  powerless  to  protect  their  interests.  A  change  was 
necessary,  if  they  were  to  indulge  hopes  of  future  prosperity. 
This  practically  powerless  condition  of  the  people  was  an  im- 
portant, if  not  the  most,  important,  reason  for  making  an  effort 
to  devise  a  remedy ;  and  the  remedy  devised  was  the  Consti- 
tution. A  leading  object  of  the  Constitution  was  to  get  rid 
of  all  conflicting  commercial  interests,  and,  as  to  commerce, 
to  effect  a  union  of  all  the  people  of  all  the  states,  great  and 
small,  and  make  them  one  people,  one  nation,  without  divided 
interests,  and  without  the  power,  as  states,  to  produce  divided 
interests  or  conflicts.  This  was  a  leading  idea  in  favor  of  the 
Constitution,  and  to  me  it  has  always  seemed  the  most  valu- 
able one. 

"  Was  this  idea  carried  into  effect  by  the  Constitution  ?  I 
think  it  was  clearly  and  fully.  It  required  several  provisions 
to  effect  the  object ;  some  conferring  powers  on  the  new  gov 


THE  POWER   TO   REGULATE    COMMERCE.  211 

ernment ;  others  prohibiting  the  exercise  of  certain  powers  to 
the  state  governments.  Hence  were  granted  the  powers:  to 
regulate  commerce  with  foreign  nations,  among  the  several 
states,  and  with  the  Indian  tribes  ;  to  establish  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United  Stales: 
to  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin, 
and  fix  the  standard  of  weights  and  measures.  The  prohibi- 
tions upon  the  states,  in  connection  with  commerce,  are,  that 
they  shall  not  lay  duties  on  imports  and  exports,  emit  bills  of 
credit,  make  any  thing  but  gold  and  silver  coin  a  tender  in 
payment  of  debts,  or  pass  any  law  impairing  the  obligation  of 
contracts.  These  provisions,  I  think,  accomplish  the  object 
intended,  namely,  the  committing  to  Congress,  the  common 
representative  and  agent  of  all  the  people,  the  exclusive  power 
to  establish  a  uniform  system  of  commerce  throughout  the 
United  States.  .  All  these  powers  have  a  very  important  con- 
nection with,  and  relation  to,  commerce,  over  which  the  com- 
mon government  was  to  exercise  great,  if  not  exclusive,  control 
for  the  common  benefit  of  all  the  people  of  all  the  states." 

§  329.  We  are  now  prepared  to  examine  with  care  the 
most  important  question  proposed  to  ourselves,  —  what  capac- 
ity to  legislate  on  the  subject  of  commerce  resides  in  the 
nation  and  in  the  states  respectively  ?  Or,  in  other  words,  is 
the  power  to  regulate  held  by  the  general  government  exclu- 
sively, or  is  it  shared  by  the  local  commonwealths  ?  So  far 
as  the  decisions  of  the  ultimate  tribunal  upon  constitutional 
interpretation  now  stand,  the  following  propositions  seem  to  be 
established:  (1.)  The  several  states  have  power  to  pass  laws 
regulating  the  internal  police  of  their  own  territories,  which 
territories  include  navigable  rivers  and  harbors,  as  well  as 
unnavigable  streams,  and  the  land  itself.  These  police  mea- 
sures are  not,  in  any  true  sense  of  the  term,  regulations  of 
commerce,  although  they  may  sometimes  have  direct  reference 
to  shipping,  to  the  condition  of  harbors  and  other  instruments 
by  which  commerce  is  carried  on,  or  to  the  commodities  them- 
selves which  are  the  objects  of  interchange  and  traffic.  They 
are  simply  a  part  of  the  general  system  by  which  each  state 
endeavors  to  protect  the  good  morals,  lives,  health,  persons, 


212  IMPORTANT   RULES   ESTABLISHED. 

and  property  of  its  inhabitants.  Thus,  if  a  state  legislature, 
deeming  it  dangerous  to  permit  poisons  to  be  sold  without 
restriction,  should  pass  a  statute  requiring  a  license  from  the 
druggist,  or  placing  him  under  any  other  species  of  restraint, 
such  law  would  be  unobjectionable,  although  certain  poisonous 
substances,  as  opium,  are  chiefly  or  wholly  the  products  of 
foreign  countries,  and  therefore  the  objects  of  commerce. 
Again,  most  of  the  states  have  enacted  statutes  prohibiting 
the  sale  of  spirituous  liquors  in  certain  quantities,  and  at  cer- 
tain times  and  places,  except  by  those  persons  who  have  com- 
plied with  the  provisions  of  the  statute,  and  have  received 
licenses  for  that  purpose.  Such  laws  are  within  the  power  of 
the  states  to  pass.  This  entire  class  of  statutes  establishing 
police  regulations  is  within  the  purview  of  state  legislation, 
whether  Congress  has  legislated  for  the  same  or  similar  pur- 
poses or  not.  Among  them  may  be  mentioned  laws  estab- 
lishing quarantine,  licensing  and  controlling  pilots,  declaring 
the  order  in  which  ships  shall  come  to  wharves  and  docks, 
regulating  the  use  of  wharves  and  docks,  managing  the  inter- 
nal order  of  harbors,  licensing  the  sale  of  spirituous  liquors, 
poisons,  and  the  like. 

§  330.  (2.)  In  respect  to  measures  which  are  properly, 
though  perhaps  indirectly,  regulations  of  commerce,  if  Con- 
gress, proceeding  under  the  general  power  conferred  upon  it, 
has  already  legislated  upon  any  subject  connected  with  foreign 
commerce,  or  with  that  among  the  states,  the  several  states  are 
entirely  deprived  of  any  authority  over  the  same  subject-mat- 
ter; they  are  entirely  cut  off  and  debarred  from  the  exercise 
of  the  legislative  function  ;  the  prior  occupation  of  the  field  by 
the  national  legislature  excludes  any  participation  therein  by 
the  individual  states.  But  if  Congress  have  not  legislated ; 
if  their  power  as  given  by  the  Constitution  lies  dormant,  the 
states  are  free  to  act ;  their  action,  however,  is  not  absolute 
and  final ;  it  is  only  conditional  ;  it  is  constantly  subject  to  be 
displaced  by  the  laws  of  Congress,  if  that  body  should  see  fit 
to  exercise  its  power,  and  regulate  the  particular  subject. 

All  the  cases  are  agreed  as  to  the  correctness  of  this  prop* 
osition ;   but  in  its  application  there  may  be  some  diversity 


THE   POWER   TO   REGULATE   COMMERCE.  213 

nor  can  the  decisions  of  the  Supreme  Court  be  perfectly  rec- 
onciled. This  discrepancy  arises,  not  from  any  difference  in 
the  statement  of  the  rule,  but  from  the  different  meanings 
which  have  been  attributed  to  it.  In  most  of  the  cases  de- 
cided by  the  Supreme  Court,  it  has  been  held  sufficient  to 
displace  the  state  authority,  if  Congress  had  legislated  so  as 
to  cover  the  subject-matter  in  a  general  way  ;  if  the  relation 
of  the  national  legislation  to  the  object  contemplated  by  the 
state  law  was  indirect  and  incidental.  One  or  two  eases, 
however,  and  several  judges,  seem  to  have  so  construed  the 
rule  as  to  require  that  Congress  should  directly  legislate  upon 
the  self-same  subject-matter  as  that  contained  in  the  state 
statute,  in  order  that  the  latter  should  be  ineffectual. 

§  331.  In  the  latest  reported  case  —  to  be  cited  hereafter 
—  the  Supreme  Court  of  the  United  States  has  expressed  the 
rule  crovernino;  the  relations  of  the  nation  and  the  states  in  an 
entirely  different  form  ;  although  it  was  probably  not  the  in- 
tention of  the  court  to  introduce  any  new  principle.  It  was 
there  said  :  The  power  to  regulate  commerce  covers  a  wide 
field,  and  embraces  a  great  variety  of  subjects.  Some  of  these 
subjects  call  for  uniform  rules  and  national  legislation  ;  others 
can  be  best  regulated  by  rules  and  provisions  suggested  by  the 
varying  circumstances  of  different  localities,  and  limited  in 
their  operation  to  such  localities  respectively.  To  this  extent 
the  power  to  regulate  commerce  may  be  exercised  by  the 
states.  But  even  in  respect  to  this  latter  class  of  rules  and 
provisions,  Congress  may  interpose  whenever  it  shall  be 
deemed  necessary  by  general  or  special  laws;  and  their  inter- 
position would  sweep  away  the  local  state  legislation.  Within 
the  sphere  of  their  authority,  both  the  legislative  and  the  ju- 
dicial powers  of  the  nation  are  supreme.  A  different  doctrine 
finds  no  wan-ant  in  the  Constitution,  and  is  abnormal  and 
revolutionary. 

§  332.  I  shall  now  add  an  abstract  of  the  cases  which  have 
been  decided  in  the  Supreme  Court  of  the  United  States,  and 
from  which  the  foregoing  propositions  have  been  derived.  As 
many  of  these  judgments  are  among  the  ablest  and  most  cele- 
brated ever  emanating  from  that  high  tribunal,  I  shall  refer  to 


214  GIBBONS  v.   OGDEN. 

them  with  some  particularity,  and  extract  from  them  .vith 
Borne  fulness.  This  course  is  adopted  the  more  readily,  be- 
cause the  opinions  of  the  judges,  while  the  most  authoritative 
expositions  of  the  Constitution,  contain  nothing  which  is  tech- 
nical;  they  may  he  appreciated  and  understood  by  any  intelli- 
gent citizen  as  well  as  by  the  professional  lawyer:  and  they 
deal  in  questions  of  the  greatest  magnitude,  —  questions  which 
lie  at  the  bottom  of  schemes  of  policy  and  of  political  contro- 
versies, and  involve  the  very  nature  of  the  government  itself. 

§  333.  Gibbons  v.  Ogden  :  Facts  and  question  at  ixme.  — 
The  case  first  in  point  of  time  (1824),  and  most  important  in 
principle,  is  that  of  Gibbons  v.  Ogden.1  The  facts  were  few 
and  brief.  The  State  of  New  York,  by  a  statute  of  its  legis- 
lature, gave  to  Robert  R.  Livingston  and  Robert  Fulton  the 
exclusive  right  to  navigate  all  waters  within  the  jurisdiction  of 
the  state  with  vessels  propelled  by  steam,  for  a  certain  term 
of  years.  Gibbons,  notwithstanding  this  statute,  navigated 
the  bay  of  New  York  with  a  steamboat  running  between 
New  York  City  and  Elizabethport  in  New  Jersey,  which 
steamboat  had  been  duly  enrolled  and  licensed  as  a  coasting 
vessel,  under  the  acts  of  the  United  States  Congress  regulat- 
ing  the  coasting  trade.  Ogden,  who  had  succeeded  to  the 
rights  of  Livingston  and  Fulton,  commenced  a  suit  in  the 
New  York  courts  to  restrain  this  proceeding  of  Gibbons. 
The  state  courts  having  decided  in  favor  of  Ogden's  claim, 
and  having  held  the  statute  of  New  York  valid,  an  appeal 
was  taken  by  the  other  party  to  the  Supreme  Court  of  the 
United  States.  The  contention  on  the  part  of  Gibbons  was, 
that  the  New  York  statute  contravened  the  clause  of  the 
Constitution  which  confers  upon  Congress  the  power  to  regu- 
late commerce  among  the  states,  and  was  therefore  void.  This 
proposition  was  denied  by  Ogden  ;  and  the  issue  thus  raised 
was  the  only  one  to  be  decided  by  the  court. 

§  334.  The  Arguments.  —  The  cause  was  argued  with  the 
utmost  learning  and  ability  by  Mr.  Webster  and  Mr.  Wirt  for 
Gibbons,  and  by  Mr.  Oakley  and  Mr.  Emmet  for  Ogden.  We 
may  well  assume  that  the  arguments  on  both  sides  were  ex- 
hausted. 

i  9  Wheaton's  R.  1. 


THE   POWER   TO   REGULATE   COMMERCE.  215 

In  support  of  the  New  York  statute  it  was  urged,  (1.) 
that  the  act  in  question  did  not  interfere  with  the  preroga- 
tives of  Congress,  as  it  was  not  a  regulation  of  commerce,  but 
only  a  police  regulation  analogous  to  those  respecting  quaran- 
tines and  pilots.  (2.)  That  Congress  had  no  exclusive  power 
at  all  over  the  subject,  but  that  the  power  was  absolutely  con- 
current in  the  national  and  state  legislatures,  so  that  by  no 
possibility  could  there  arise  a  conflict  of  jurisdiction.  (3.) 
That  if  the  latter  proposition  was  overruled,  still  the  power 
was  held  by  the  states  concurrently,  and  they  might  legislate 
thereby,  unless  Congress  had  already  legislated  upon  exactly 
the  same  subject-matter  as  that  over  which  the  state  had  as- 
sumed control ;  and  that  as  Congress  had  never  legislated  in 
regard  to  the  navigation  of  state  waters  with  steamboats,  the 
statute  in  question  was  valid. 

On  the  other  side  it  was  contended  :  (1.)  That  the  New 
York  law  was  a  regulation  of  commerce,  and  the  powers  of 
the  national  government  were  discussed  at  large.  (2.)  That 
the  jurisdiction  of  Congress  was  absolutely  exclusive,  or  at 
least,  (3.)  That  Congress  having  legislated  upon  the  gen- 
eral topic  of  navigation,  and  prescribed  certain  steps  to  be 
taken  in  order  to  entitle  a  person  to  employ  his  vessel  in  the 
coasting  trade,  —  namely,  the  procuring  it  to  be  enrolled  and 
licensed,  —  no  state  had  authority  to  add  any  further  con- 
ditions to  the  use  of  a  vessel. 

§  335.  Opinion  of  the  Court.  Extent  of  the  power  to  reg- 
ulate. How  far  exclusive.  —  The  opinion  of  the  court  was 
delivered  by  C.  J.  Marshall,  and  is  confessedly  one  of  his 
masterpieces.  It  should  be  diligently  read  by  all  students  of 
our  Constitution  and  civil  polity.  I  shall  only  quote  the 
salient  points. 

After  speaking  of  the  meaning  and  nature  of  commerce,  and 
the  sort  of  rules  which  Congress  may  legitimately  ordain  by 
virtue  of  the  constitutional  grant,  the  Chief  Justice  proceeds  to 
meet  the  important  question  under  consideration.  He  says  : 1 
"  We  are  now  arrived  at  the  inquiry,  What  is  this  power  ? 
It  is  the  power  to  regulate ;  that  is,  to  prescribe  the  rule  by 
i  9  Wheaton's  R.  196. 


216  GIBBONS   v.   OGDEN. 

which  commerce  is  to  be  governed.  This  power,  like  nfl 
others  vested  in  Congress,  is  complete  in  itself;  may  be  exer- 
cised to  its  utmost  extent,  and  acknowledges  no  limitations 
other  than  are  prescribed  in  the  Constitution.  These  are  ex- 
pressed in  plain  terms,  and  do  not  affect  the  questions  which 
arise  in  this  case,  or  which  have  been  discussed  at  the  bar." 
"But1  it  has  been  urged  with  great  earnestness, 
that,  although  the  power  of  Congress  to  regulate  commerce 
with  foreign  nations,  and  among  the  several  states,  be  co- 
extensive  with  the  subject  itself,  and  have  no  other  limits 
than  are  prescribed  in  the  Constitution,  yet  the  states  may 
severally  exercise  the  same  power  within  their  respective  juris- 
dictions  The  appellant  [Gibbons]  contends  that 

the  full  power  to  regulate  a  particular  subject,  implies  the 
whole  power,  and  leaves  no  residuum  ;  that  a  grant  of  the 
whole  is  incompatible  with  the  existence  of  a  right  in  another 
to  any  part  of  it."  The  Chief  Justice  then  proceeds  to  show 
that  there  is  no  analogy  between  the  power  of  taxation,  and 
the  power  to  regulate  commerce.  Congress  has  general  power 
to  tax ;  and  yet  it  is  universally  admitted  that  the  states  may 
also  tax.  The  reason  is  that  the  Constitution  recognizes  the 
states  as  bodies-politic,  and  to  their  very  existence  as  such,  the 
power  to  lay  and  collect  taxes  is  absolutely  essential,  while  the 
power  to  regulate  commerce  is  not.  No  argument  can,  there- 
fore, be  drawn  from  the  conceded  concurrent  power  of  tin- 
states  to  exercise  the  function  of  taxation,  in  favor  of  a  like 
concurrent  jurisdiction  over  commerce.  Having  disposed  of 
this  apparent  analogy,  the  Chief  Justice  proceeds  : 2  "  In  dis- 
cussing the  question  whether  this  power  is  still  in  the  states, 
in  the  case  under  consideration,  we  ma}r  dismiss  from  it  the 
inquiry  whether  it  is  surrendered  by  the  mere  grant  to  Con- 
gress, or  is  retained  until  Congress  shall  exercise  the  power. 
We  may  dismiss  that  inquiry  because  it  has  been  exercised, 
and  the  regulations  which  Congress  deemed  it  proper  to  make, 
are  now  in  full  operation.  The  sole  question  is,  can  a  state 
regulate  commerce  with  foreign  nations,  and  among  the  states 
while  Congress  is  regulating  it  ?  " 

1  9  Wheaton's  R.  197.  2  Ibid.  200. 


THE  POWER  TO  REGULATE   COMMERCE.  211 

§  336.  Poivers  held  by  the  States.  How  far  they  interfere 
with  those  held  by  Congress.  —  The  Chief  Justice  continues  : ' 
"But  the  inspection  laws  are  said  to  be  regulations  of  com- 
merce, and  are  certainly  recognized  in  the  Constitution  as 
being  passed  in  the  exercise  of  a  power  remaining  with  the 
states.  That  inspection  laws  may  have  a  remote  and  con- 
siderable influence  on  commerce,  will  not  be  denied ;  but  that 
a  power  to  regulate  commerce  is  the  source  from  which  the 
right  to  pass  them  is  derived,  cannot  be  admitted.  The  ob- 
ject of  inspection  laws  is  to  improve  the  quality  of  articles 
produced  by  the  labor  of  a  country ;  to  fit  them  for  exporta- 
tion, or,  it  may  be,  for  domestic  use.  They  act  upon  a  subject 
before  it  becomes  an  article  of  foreign  commerce,  or  of  com- 
merce among  the  states,  and  prepare  it  for  that  purpose. 
They  form  a  portion  of  that  immense  mass  of  legislation  which 
embraces  every  thing  within  the  territory  of  a  state  not  sur- 
rendered to  the  general  government ;  all  which  can  be  most 
advantageously  exercised  by  the  states  themselves.  Inspec- 
tion laws,  quarantine  laws,  health  laws  of  every  description, 
as  well  as  laws  for  regulating  the  internal  commerce  of  a  state, 
and  those  which  respect  turnpike  roads,  ferries,  etc.,  are  com- 
ponent parts  of  this  mass.  No  direct  general  power  over  these 
objects  is  granted  to  Congress ;  and,  consequently,  they  remain 
subject  to  state  legislation.  If  the  legislative  power  of  the 
Union  can  reach  them,  it  must  be  for  national  purposes  ;  it 
must  be  where  the  power  is  expressly  given  for  a  special  pur- 
pose, or  is  clearly  incidental  to  some  power  which  is  expressly 
given. 

It  is  obvious  that  the  government  of  the  Union  in  the  exer- 
cise  of  its  express  powers,  —  that,  for  example,  of  regulating 
commerce  with  foreign  nations,  and  among  the  states,  —  may 
use  means  which  may  also  be  employed  by  a  state  in  the  ex- 
ercise of  its  acknowledged  powers,  —  that,  for  example,  of 
regulating  commerce  within  the  state.  If  Congress  license 
vessels  to  sail  from  one  port  to  another  in  the  same  state,  the 
act  is  supposed  to  be  necessarily  incidental  to  the  powers 
expressly  granted  to  Congress,  and  implies  no  claim  of  a  direct 
l  9  Wheaton's  R.  203. 


218  GIBBONS  v.   OGDEN. 

power  to  regulate  the  purely  internal  commerce  of  a  state,  oi 
to  act  directly  on  its  system  of  police.  So  if  a  state,  in  passing 
laws  on  subjects  acknowledged  to  be  within  its  control,  and 
with  a  view  to  those  subjects,  shall  adopt  a  measure  of  the 
same  character  with  one  which  Congress  may  adopt,  it  does 
not  derive  its  authority  from  the  particular  power  which  has 
been  granted,  but  from  some  other  which  remains  with  the 
state,  and  may  be  executed  by  the  same  means.  All  expe- 
rience shows  that  the  same  measures,  or  measures  scarcely 
distinguishable  from  each  other,  may  flow  from  distinct  powers  ; 
but  this  does  not  prove  that  the  powers  themselves  are  iden- 
tical. Although  the  means  used  in  their  execution  may  some- 
times approach  each  other  so  nearly  as  to  be  confounded,  there 
are  other  situations  in  which  they  are  sufficiently  distinct  to 
establish  their  individuality." 

§  337.  Conclusions  of  the  Court.  —  Proceeding  to  apply 
these  general  principles,  the  Chief  Justice  discusses  and  de- 
cides the  following  propositions.  (1.)  That 1  the  laws  of  New 
York  in  question  are  in  collision  with  the  acts  of  Congress 
reo-ulatino"  the  coasting  trade,  which  beino;  made  in  pursuance 
of  the  Constitution  are  supreme  ;  and  the  state  laws  must 
yield  to  that  supremacy,  even  though  enacted  in  pursuance  of 
powers  acknowledged  to  remain  in  the  states.  (2.)  That  2  a 
license  under  the  acts  of  Congress  for  regulating  the  coasting 
trade,  gives  a  permission  to  carry  on  that  trade.  (3.)  That  3 
the  act  of  Congress  applies  as  well  to  steam  as  to  sailing  ves- 
sels. The  decree  appealed  from  was  unanimously  reversed, 
and  the  statute  of  New  York  declared  unconstitutional  and 
void.  Mr.  Justice  Johnson  also  delivered  an  opinion  in  which 
he  went  even  further  than  the  Chief  Justice  ;  for  he  held  that 
though  Congress  had  passed  no  statute  regulating  the  coasting 
trade,  the  State  of  New  York  would  have  had  no  authority  to 
give  the  exclusive  right  of  navigating  the  waters  in  question 
to  any  of  her  citizens,  or  to  any  particular  persons  whatever. 

§  338.  I  have  quoted  thus  largely  from  this  case,  because  it 
is  one  of  the  grand  landmarks  of  constitutional  interpretation 
jvhich  have  been  placed  along  the  course  of  our  political  his- 
1  9  AVheaton's  K.  210.  2  Ibid.  212.  3  Ibid.  219. 


THE   POWER   TO   REGULATE   COMMERCE.  219 

tory ;  one  of  those  decisions  so  fruitful  in  results,  that  it  may 
be  said  to  contain  within  itself  the  germs  of  all  future  develop- 
ment. 

It  is  very  important,  however,  to  ascertain  exactly  what  the 
case  decided  ;  for  what  legal  propositions  it  is  an  authority. 
And  (1)  it  did  not  decide  that  the  mere  grant  to  Congress  of 
power  to  regulate  commerce  with  foreign  nations,  etc.,  ipso 
facto  excluded  the  states  from  the  exercise  of  a  like  power  ; 
although  much  of  the  reasoning  of  C.  J.  Marshall  plainly  leads 
to  that  conclusion.  (2.)  It  did  decide  that  the  grant  contained 
in  the  Constitution,  together  with  legislation  of  Congress  in 
pursuance  thereof,  inhibited  the  states  from  interfering  with 
the  subject-matter  of  the  congressional  legislation.  (3.)  It 
also  decided,  that  the  subject-matter  thus  withdrawn  from 
the  state  jurisdiction  need  not  have  been  the  direct  object  of 
the  national  legislation,  need  not  have  been  the  self-same  thing 
with  which  that  legislation  was  concerned ;  but  it  was  sufficient 
if  the  subject-matter  were  incidentally  and  indirectly  within 
the  scope  of  the  congressional  acts. 

§  339.  Brown  v.  Maryland :  Facts  and  question  at  issue.  — 
The  next  case  in  order,  (1827,)  and  one  which  has  always 
been  considered  as  leading,  both  by  those  who  assent  to  it,  and 
by  those  who  oppose  it,  was  Brown  v.  The  State  of  Maryland.1 
That  state  had  enacted  a  statute  requiring  all  importers  of 
foreign  goods  by  the  bale  or  package,  and  other  persons  selling 
the  same  by  the  wholesale,  bale,  or  package,  to  take  out  a 
license,  for  which  they  should  pay  a  certain  fee ;  and  in  de- 
fault thereof,  they  should  be  subject  to  certain  fines  and  other 
penalties.  Brown,  having  violated  this  statute,  was  indicted 
thereunder,  and  demurred  to  the  indictment  on  the  ground 
that  the  state  law  was  unconstitutional  and  void.  The  courts 
of  Maryland  having  rendered  judgment  against  him,  he  carried 
the  case  to  the  Supreme  Court  of  the  United  States.  It  was 
there  urged  that  the  statute  in  question  was  void,  because  it 
yontravened  (1)  the  provisions  of  the  Constitution  forbidding 
states  to  lay  duties  on  imports ;  and  (2)  those  granting  to 
Congress  the  power  to  regulate  foreign  commerce.  The  case 
1  12  Wheaton's  R.  419. 


220  BROWN   v.   MARYLAND. 

lias  already  been  cited  to  illustrate  the  first  of  these  positions,1 
and  it  is  only  now  to  be  examined  in  reference  to  the  second. 

§  340.  Opinion  of  the  Court.  Extent  of  the  'power  to  regu- 
late.—  The  opinion  was  delivered  by  Chief  Justice  Marshall. 
Alter  arriving  at  the  conclusion  that  the  statute  was  void  on 
the  first  ground,  he  proceeds  to  say:2  "Is  it  also  repugnant 
to  that  clause  of  the  Constitution  which  empowers  Congress  to 
regulate  commerce  with  foreign  nations  and  among  the  several 
states?"  Describing  the  degraded  and  disorganized  condition 
of  commerce  during  the  confederation,  and  the  fact  that  one 
of  the  powerful  incentives  for  the  adoption  of  the  Constitution, 
was  the  desire  to  remedy  this  great  evil,  he  continues :  3  "It 
is  not,  therefore,  matter  of  surprise  that  the  grant  should  be  as 
extensive  as  the  mischief,  and  should  comprehend  all  foreign 
commerce,  and  all  commerce  among  the  states.  To  construe 
the  power  so  as  to  impair  its  efficacy,  would  tend  to  defeat  an 
object,  in  the  attainment  of  which  the  American  public  took, 
and  justly  took,  that  strong  interest  which  arose  from  a  full 
conviction   of  its  necessity." 

§  341.  Foreign  commerce  includes  the  sale  of  imported  articles. 
After  quoting  some  propositions  from  Gibbons  v.  Ogden,  he 
adds:4  "If  this  power  reaches  the  interior  of  a  state  and  may 
be  there  exercised,  it  must  be  capable  of  authorizing  the  sale 
of  those  articles  which  it  introduces.  Commerce  is  intercourse, 
one  of  its  most  ordinary  ingredients  is  traffic.  It  is  incon- 
ceivable that  the  power  to  authorize  this  traffic,  when  given 
in  the  most  comprehensive  terms,  with  the  intent  that  its  effi- 
cacy should  be  complete,  should  cease  at  the  point  where  its 
continuance  is  indispensable  to  its  value.  To  what  purpose 
should  the  power  to  allow  importation  be  given,  unaccompa- 
nied with  the  power  to  authorize  a  sale  of  the  thing  imported? 
Sale  is  the  object  of  importation,  and  is  an  essential  ingredient 
of  that  intercourse  of  which  importation  constitutes  a  part.  It 
is  as  essential  an  ingredient,  as  indispensable  to  the  existence 
of  the  entire  thing,  therefore,  as  importation  itself.  It  must  be 
considered  as  a  component  part  of  the  power  to  regulate  corn 

i  See  §  309.  2  12  Wheaton's  R.  -445. 

2  Ibid.  446.  4  Ibid.  446. 


THE   rOWER   TO    REGULATE    COMMERCE.  221 

merce.     Congress  has  a  right,  not  only  to  authorize  importa- 
tion, but  to  authorize  the  importer  to  sell." 

§  342.  States  cannot  interfere  with  the  Importer's  right  to  Sell. 
— The  Chief  Justice  further  proceeds:  l  "  What  would  be  the 
language  of  a  foreign  government  which  should  be  informed 
that  its  merchants,  after  importing  according  to  law,  were  for- 
bidden to  sell  the  merchandise  imported  ?  What  answer 
would  the  United  States  give  to  the  complaints  and  just  re- 
proaches to  which  such  an  extraordinary  circumstance  would 
expose  them  ?  No  apology  could  be  received  or  even  offered. 
Such  a  state  of  things  would  break  up  commerce.  It  will  not 
meet  this  argument  to  say  that  this  state  of  things  will  never 
be  produced,  that  the  good  sense  of  the  states  is  a  sufficient 
security  against  it.  The  Constitution  has  not  confided  this 
subject  to  that  good  sense ;  it  is  placed  elsewhere.  The  ques- 
tion is,  Where  does  the  power  reside  ?  not,  how  far  will  it 
probably  be  abused.  The  power  claimed  by  the  state  is,  in 
its  nature,  in  conflict  with  that  given  to  Congress  ;  and  the 
greater  or  less  extent  in  which  it  may  be  exercised,  does  not 
enter  into  the  inquiry  concerning  its  existence.  We  think, 
then,  that  if  the  power  to  authorize  a  sale  exists  in  Congress, 
the  conclusion  that  the  right  to  sell  is  connected  with  the  law 
permitting  importation  as  an  inseparable  incident,  is  inevitable. 
If  the  principles  we  have  stated  be  correct,  the  result  to  which 
they  conduct  us  cannot  be  mistaken.  Any  penalty  inflicted 
on  the  importer  for  selling  the  article  in  his  character  of  im- 
porter, must  be  in  opposition  to  the  act  of  Congress,  which 
authorizes  importation.  Any  charge  on  the  introduction  and 
incorporation  of  the  articles  into  and  with  the  mass  of  properd- 
in the  country,  must  be  hostile  to  the  power  given  to  Congress 
to  regulate  commerce;  since  an  essential  part  of  that  regula- 
tion, and  principal  object  of  it,  is  to  prescribe  the  regular  means 
for  accomplishing  that  introduction  and  incoi'poration." 

The  judgment  of  the  Maryland  court  was  reversed  ;  the 
state  statute  was  declared  unconstitutional  and  void.  From 
this  decision  Mr.  Justice  Thompson  dissented. 

§  343.  The  case  of  Brown  v.  Maryland  reaffirms  in  the  mo«t 
1  12  Wheaton's  R.  447. 


222  WILSON   v.  BLACKBIRD    CREEK   COMPANY. 

emphatic  manner,  the  several  propositions  slated  in  §  338. 
For  here  the  acts  of  Congress  regulating,  and  therefore  per- 
mitting importation,  were  held  to  be  so  complete  an  exercise 
of  the  power  granted  to  the  national  legislature,  as  to  preclude 
the  states  from  interfering  with  the  sale  of  the  goods  by  the 
importer.  It  should  be  noticed  that  the  laws  of  Congress  were 
entirely  silent  upon  the  subject  of  sale. 

§  344.  Wilson  v.  Blackbird  Creek  Company  :  Facts  and 
Question  at  issue.  —  The  next  case  in  order  of  time  (1829), 
was  that  of  Wilson  v.  Blackbird  Creek  Company.1  The 
case,  though  not  elaborately  considered  by  the  court,  is  im- 
portant, and  has  been  made  the  precedent  for  subsequent 
decisions  involvino;  matters  of  more  intrinsic  magnitude.  It 
came  up  from  the  highest  court  of  Delaware.  The  company 
had  been  incorporated  by  a  statute  of  that  state,  and  were  the 
owners  of  marsh  land  bordering  upon  the  Blackbird  Creek,  a 
small  stream  connecting  with  the  ocean,  and  in  which  the  tide 
ebbed  and  flowed.  They  were  authorized  to  make  a  dam 
across  the  creek,  and  to  embank  the  marsh,  the  design  being 
to  reclaim  the  land.  They  proceeded  to  construct  the  dam 
by  which  the  navigation  of  the  stream  was  interrupted.  Wil- 
son, being  owner  of  a  sloop  licensed  and  enrolled  under 
United  States  statutes,  broke  and  injured  the  dam,  and  was 
sued  by  the  company  for  damages.  Wilson  justified  his  tres- 
pass by  setting  up  his  license  and  enrolment,  and  his  right  to 
navigate  the  creek,  and  that  the  dam  was  an  unlawful  obstruc- 
tion to  his  right  which  he  mio;ht  and  did  remove.  To  his 
defence  the  company  demurred,  and  the  only  question  arising 
was  as  to  the  validity  of  the  state  statute.  The  court  of  Dela- 
ware held  the  statute  valid,  and  overruled  the  defence.  Wil- 
son, thereupon,  carried  the  case  to  the  Supreme  Court  of  the* 
United  States. 

§  345.  Opinion  of  the  Court.  —  The  opinion  of  the  court  was 
delivered  by  C.  J.  Marshall.  He  says:2  "The  act  of  assem- 
bly by  which  the  plaintiffs  were  authorized  to  construct  their 
dam,  shows  plainly  that  this  is  one  of  those  many  creeks  pass- 
ing through  a  deep,  level  marsh  adjoining  the  Delaware,  up 
l  2  Peters'  R.  245.  2  Ibid.  250. 


THE   POWER   TO   REGULATE    COMMERCE.  223 

which  the  tide  flows  for  some  distance.  The  value  of  the 
property  on  its  banks  must  be  enhanced  by  excluding  the 
water  from  the  marsh,  and  the  health  of  the  inhabitants  prob- 
ably improved.  Measures  calculated  to  produce  these  objects, 
provided  they  do  not  come  into  collision  with  the  [towers  of 
the  general  government,  are  undoubtedly  within  those  \\  nich 
are  reserved  to  the  states.  But  the  measure  authorized  by 
this  act  stops  a  navigable  creek,  and  must  be  supposed  to 
abridge  the  rights  of  those  who  have  been  accustomed  to  use 
it.  But  this  abridgment,  unless  it  comes  in  conflict  with  the 
Constitution  or  a  law  of  the  United  States,  is  an  affair  between 
the  government  of  Delaware  and  its  citizens,  of  which  this 
court  can  take  no  cognizance.  The  counsel  for  the  plaintiff'  in 
error  insist  that  it  comes  in  conflict  with  the  power  of  the 
United  States  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  states.  If  Congress  had  passed  any  act 
which  bore  upon  the  case  ;  any  act  in  execution  of  the  power 
to  regulate  commerce,  the  object  of  which  was  to  control  state 
legislation  over  these  small  navigable  creeks  into  which  the 
tide  flows,  we  should  not  feel  much  difficulty  in  saying  that  a 
state  law  coming  in  conflict  with  such  act  would  be  void.  But 
Congress  has  passed  no  such  act.  The  repugnancy  of  the  law 
of  Delaware  to  the  Constitution  is  placed  entirely  on  its  repug- 
nancy to  the  power  to  regulate  commerce  with  foreign  nations 
and  among  the  several  states ;  a  power  which  has  not  been  so 
exercised  as  to  affect  the  question.  We  do  not  think  that  the 
act  empowering  the  company  to  place  a  dam  across  the  creek, 
can,  under  all  the  circumstances  of  the  case,  be  considered  as 
repugnant  to  the  power  to  regulate  commerce  in  its  dormant 
state,  or  as  being  in  conflict  with  any  law  passed  on  the  sub- 
ject." This  is  the  entire  opinion.  The  judgment  was  af- 
firmed ;  and  the  state  statute  held  valid. 

§  346.  J\.  consequence  and  effect  have  been  attributed  to 
this  short  case,  which  Chief  Justice  Marshall  probably  never 
dreamed  of;  for,  as  will  be  seen  in  the  sequel,  some  of  the 
judges  have  claimed  that  it  formally  overrules  Gibbons  v.  Og- 
■den,  and  Brown  v.  Maryland,  and  abandons  the  principles  of 
interpretation  settled  by  those  celebrated  judgments.     It  can- 


224  WILSON   v.    BLACKBIRD    CREEK   COMPANY. 

not  be  denied  that  much  of  the  language  of  C.  J.  Marshall 
here  used,  can  with  difficulty  be  reconciled,  not  only  to  par- 
ticular expressions,  but  to  the  whole  course  of  his  argument  in 

those  fonner  decisions.  The  difficulty  is  not,  that  he  rejects 
either  the  first  or  the  second  of  the  propositions  stated  by  me 
in  §  338  ;  both  are  included  in  his  opinion  ;  but  he  seems  to 
greatly  modify  the  third.  He  now  requires  that  Congress 
should  have  legislated  in  respect  to  this  creek,  or  the  class  of 
streams  to  which  it  belongs,  in  order  that  the  authority  of  the 
state  over  the  same  subject  should  be  destroyed  ;  it  is  not  suf- 
ficient now  that  Congress  should  have  legislated  upon  the  gen- 
eral subject  of  navigation.  Compare  this  case  with  that  of 
Gibbons  v.  Ogden.  In  both,  the  persons  attacking  the  state 
law  were  owners  of  a  vessel  licensed  for  the  coasting  trade  ; 
in  both,  the  place  affected  by  the  state  legislation  was  a  navi- 
gable stream,  lying  within  the  state  territory,  in  one  case  a 
great  affluent  of  the  ocean,  in  the  other  an  insignificant  tidal 
creek  ;  in  both  the  states  attempted  to  interfere  with  the  free 
navigation  of  these  streams,  the  one  by  imposing  further  con- 
ditions upon  the  navigator,  the  other  by  cutting  off  all  access 
whatever.  Yet  in  Gibbons  v.  Ogden,  the  general  legislation 
touching  the  navigation  of  the  coast  was  deemed  enough  to 
oust  the  jurisdiction  of  the  state ;  while  in  Wilson  v.  The 
Blackbird  Creek  Company,  legislation  touching  the  stream 
itself  seems  to  be  required.  I  repeat  that  it  is  difficult  to 
reconcile  these  cases  ;  and  it  is  just  as  difficult  to  suppose  that 
Chief  Justice  Marshall  would  have  swept  away  the  doctrines 
he  had  elaborated  with  such  a  wealth  and  cogency  of  reason- 
ing, without  so  much  as  a  passing  reference,  even,  to  the  former 
decisions. 

Probably  the  best  explanation  of  the  Blackbird  Creek  case 
is  that  given  by  Mr.  Justice  Clifford,  in  Gilman  v.  Philadel- 
phia.1 He  says  of  it :  "  Judgment  was  rendered  in  that  case 
by  the  same  court  which  gave  judgment  in  the  case  of  Gib- 
Dons  v.  Ogden  ;  and  there  is  not  a  man  living,  I  suppose,  who 
has  any  reason  to  conclude  that  the  constitutional  views  of  the 
court  had  at  that  time  undergone  any  change.  Instead  of 
l  3  Wallace's  R.  743. 


THE   POWER   TO   REGULATE   COMMERCE.  225 

overruling  that  case,  it  will  be  seen  that  the  Chief  Justice  who 
gave  the  opinion  did  not  even  allude  to  it,  although  as  a  sound 
exposition  of  the  Constitution  of  the  United  States,  it  is  second 
in  importance  to  no  one  which  that  great  magistrate  ever  de- 
livered. Evidently  he  had  no  occasion  to  refer  to  it  or  to  any 
of  its  doctrines,  as  he  spoke  of  the  creek  mentioned  in  the 
case  as  a  low,  sluggish  water,  of  little  or  no  consequence,  and 
treated  the  erection  of  the  dam  as  one  adapted  to  reclaim  the 
adjacent  marshes  and  as  essential  to  the  public  health,  and 
sustained  the  constitutionality  of  the  law  authorizing  the  erec- 
tion, upon  the  ground  that  it  was  within  the  reserved  police 
powers  of  the  state." 

This  explanation  removes  all  appearance  of  conflict  from 
these  three  decisions  of  C.  J.  Marshall ;  without  it  they  can- 
not fairly  be  reconciled. 

§  347.  New  York  v.  Miln:  Facts  and  Question  at  issue. — 
Following  the  chronological  order,  the  next  case  which  we 
meet  is,  The  City  of  New  York  v.  Miln,1  (1837.)  This  case 
is  very  important,  as  it  fully  considers  what  police  regula- 
tions are  within  the  jurisdiction  of  the  states  to  adopt,  although 
they  may  have  connection  with  commerce.  The  action  was 
brought  in  the  circuit  court  of  the  United  States  held  in  New 
York.  That  state  had  passed  a  law  providing,  among  other 
things,  that  every  master  of  a  vessel  arriving  at  New  York 
City  from  a  foreign  country,  or  from  a  port  in  another  state, 
should,  within  twenty-four  hours,  make  a  report  in  writing, 
containing  the  names,  ages,  and  last  place  of  settlement  of 
every  passenger ;  and  in  default  thereof  should  be  liable  to 
certain  penalties  to  be  sued  for  by  the  city  of  New  York.  The 
defendant,  Miln,  was  the  master  of  the  ship  Emily,  and  having 
arrived  with  passengers,  and  having  failed  to  make  the  required 
report,  was  sued  by  the  city  of  New  York.  Miln  defended  the 
suit  on  the  ground  that  the  statute  of  New  York  assumed  to 
regulate  commerce  between  the  port  of  Newr  York  and  foreign 
ports,  and  was  unconstitutional  and  void.  This  was  the  sole 
question  brought  before  the  Supreme  Court  for  decision.  The 
cause  was  argued  twice.     After  the  first  argument,  and  before 

1  11  Peters'  R.  102. 
15 


226  NEW   YORK  v.   MILN. 

the  decision,  Chief  Justice  Marshall  died,  and  his  place  was 
supplied  by  the  appointment  of  C.  J.  Taney.  A  second  ar- 
gument was  thereupon  had. 

§  348.  Opinion  of  the  Court:  Police  Poivers  of  the  States. — 
The  opinion  of  the  court  was  delivered  by  Mr.  Justice  Barbour. 
He  says:  1  "  It  is  contended  by  the  counsel  for  the  defendant, 
that  the  act  in  question  is  a  regulation  of  commerce  ;  that  the 
power  to  regulate  commerce  is,  by  the  Constitution  of  the 
United  States,  granted  to  Congress  ;  that  this  power  is  exclu- 
sive ;  and  that  consequently  the  act  is  a  violation  of  the  Con- 
stitution  The  plaintiffs  deny  that  it  is  a  regulation 

of  commerce  ;  on  the  contrary,  they  assert  that  it  is  a  mere 
regulation  of  internal  police,  a  power  over  which  is  not  granted 
to  Congress  ;  and  which,  therefore,  as  well  upon  a  true  con- 
struction of  the  Constitution,  as  by  force  of  the  tenth  amend- 
ment to  that  instrument,  is  reserved  to,  and  resides  in,  the 
several  states.  We  shall  not  enter  into  any  examination  of 
the  question  whether  the  power  to  regulate  commerce  be,  or 
be  not,  exclusive  of  the  states,  because  the  opinion  we  have 
formed  renders  it  unnecessary.  In  other  words,  we  are  of 
opinion  that  the  act  is  not  a  regulation  of  commerce,  but  of 
police  ;  and  that,  being  thus  considered,  it  was  passed  in  the 
exercise  of  a  power  rightfully  belonging  to  the  states." 

§  349.  Nature  of  Police  Powers.  —  The  court  continue  :  a 
"  If,  as  we  think,  it  be  a  regulation,  not  of  commerce,  but  of 
police,  then  it  is  not  taken  from  the  states.  To  decide  this, 
let  us  examine  its  purpose,  the  end  to  be  attained,  and  the 
means  of  its  attainment.  It  is  apparent  from  the  whole  scope 
of  the  law,  that  the  object  of  the  legislature  was  to  prevent 
Newr  York  from  being  burdened  by  an  influx  of  persons 
brought  thither  in  ships,  either  from  foreign  countries,  or  from 
any  other  of  the  states;  and  for  that  purpose  a  report  was  re- 
quired of  the  names,  places  of  birth,  etc.,  of  all  passengers,  that 
the  necessary  steps  might  be  taken  by  the  city  authorities  to 
prevent  them  from  becoming  chargeable  as  paupers.  Now  we 
hold  that  both  the  end,  and  the  means  here  used,  are  within 
the  competency  of  the  states."  The  justice  then  discusses  the 
1  11  Peters*  R.  131.  a  Ibid.  132. 


THE   POWER   TO   REGULATE   COMMERCE.  227 

application  of  Gibbons  v.  Ogden,  and  Brown  v.  Maryland,  to 
the  present  case.  The  conclusion  arrived  at  was,  that  they 
had  no  applicability.1  In  commenting  on  the  case  of  Brown 
v.  Maryland,  the  learned  justice  said,  speaking  of  the  principles 
therein  laid  down  by  Chief  Justice  Marshall  :2  "  But  how  can 
this  apply  to  persons?  They  are  not  the  subject  of  commerce  ; 
and  not  being  imported  goods,  cannot  fall  within  a  train  of 
reasoning  founded  upon  a  construction  of  a  power  given  to 
Congress  to  regulate  commerce,  and  the  prohibition  of  the 
states  from  imposing  duties  on  imports."  The  argument  of  the 
court  is  finally  summed  up : 3  "  But  Ave  do  not  place  our 
opinion  on  this  ground.  We  choose  rather  to  plant  ourselves 
on  what  we  consider  impregnable  positions.  They  are  these  : 
That  a  state  has  the  same  undeniable,  unlimited  jurisdiction 
over  all  persons  and  things  within  its  territorial  limits,  as  any 
foreign  nation,  where  that  jurisdiction  is  not  surrendered  or 
restrained  by  the  Constitution  of  the  United  States  :  that,  by 
virtue  of  this,  it  is  not  only  the  right,  but  the  bounden  and 
solemn  duty  of  a  state,  to  advance  the  safety,  happiness,  and 
prosperity  of  its  people,  and  to  provide  for  its  general  welfare, 
by  any  and  every  act  of  legislation  which  it  may  deem  to  be 
conducive  to  those  ends,  where  the  power  over  the  particular 
subject,  or  the  manner  of  its  exercise,  is  not  surrendered  or  re- 
strained in  the  manner  just  stated  :  that  all  these  powers  which 
relate  to  merely  municipal  legislation,  or  what  may,  perhaps, 
more  properly  be  called  internal  police,  are  not  thus  surren- 
dered or  restrained  ;  and  that,  consequently,  in  relation  to 
these  the  authority  of  a  state  is  complete,  unqualified,  and  ex- 
clusive." 

The  New  York  statute  was  declared  valid.  From  this  de- 
cision Mr.  Justice  Story  very  earnestly  and  emphatically  dis- 
sented. With  his  opinion  he  stated  that  Chief  Justice  Marshall 
had  agreed. 

§  350.  In   my  opinion  the  decision  of  the  court  upon  the 

facts  of  this  case  was  correct,  although  many  of  the  dicta  in 

the  opinion  of  Mr.  Justice  Barbour  cannot  be  supported.     The 

'aw  of  New  York  seems  clearly  to  fall  within  that  mass  of 

1  11  Peters'  R.  133-136.  *  Ibid.  136.  3  Ibid.  138. 


•228  THE    LICENSE   CASES. 

supervisory  measures,  which  are  collectively  termed  regu- 
lations of  police.  The  case  is  quite  plainly  distinguishable 
from  Brown  v.  Maryland.  In  the  Litter  ease,  the  state  legisla- 
tion acted  upon  the  objects  of  commerce,  and  placed  a  new  re- 
striction upon  the  incorporation  of  imported  goods  into  the 
general  property  of  the  state  :  the  New  York  statute  did  not 
interfere  with  the  transit  and  landing  of  passengers  ;  it  only 
required  information  as  to  those  who  should  land,  and  thus  he- 
come  added  to  the  number  of  inhabitants.  The  dictum  of 
Mr.  Justice  Barbour,  that  persons  cannot  be  the  objects  of 
commerce,  was  not  necessary  to  the  decision  of  the  case,  was 
plainly  incorrect,  and,  as  wTe  shall  see,  was  directly  overruled 
by  a  subsequent  judgment  of  the  same  court. 

§  351.  Tlie  License  Cases  :  Facts  and  Questions  at  issue.  — 
Following  in  order  of  time  (1847)  are  the  license  cases.1 
There  were  three  cases :  Thurlow  v.  Massachusetts,  Fletcher 
v.  Rhode  Island,  and  Peirce  v.  New  Hampshire.  In  each,  a 
person  was  indicted  under  a  state  statute  forbidding  the  sale 
of  spirituous  liquors  without  a  license.  In  Massachusetts  the 
statute  forbade  the  sale  of  spirituous  liquors  in  less  quantities 
than  twenty-eight  gallons,  unless  the  seller  be  licensed.  In 
Rhode  Island  the  statute  was  similar,  and  the  person  indicted 
had  sold  French  brandy  purchased  directly  from  the  original 
importer.  .In  New  Hampshire  the  statute  was  similar,  and  the 
person  indicted  had  sold  a  barrel  of  American  gin,  purchased 
by  himself  in  Boston,  and  carried  coastwise  to  a  port  in  New 
Hampshire,  where  it  was  sold  in  the  original  package.  The 
objection  urged  against  each  of  these  statutes  was  that  it  con- 
travened the  Constitution  and  the  acts  of  Congress  passed 
thereunder. 

§352.  Decision  of  the  Court.  —  In  these  cases  a  strong 
attempt  was  made  to  commit  the  court  to  the  theory  that 
jurisdiction  over  commerce  is,  in  all  cases,  concurrent  in  the 
nation  and  in  the  states.  It  is  absolutely  impossible,  however, 
to  say  what  the  court  decided.  Although  all  the  judges  came 
to  the  same  conclusion,  —  that  the  state  laws  were  valid,  — 
hardly  two,  much  less  a  majority,  agreed  in  the  reasons  for 
their  judgment,  and  the  rules  of  law  applicable  to  the  cases. 
1  5  Howard's  R.  504. 


THE   POWER   TO   REGULATE   COMMERCE.  229 

I  have  no  doubt  that  all  these  state  laws  were  valid  ;  they, 
were  plainly  police  regulations,  established  to  preserve  the 
health  and  morals  of  the  citizens.  Rested  upon  this  ground, 
the  license  cases  would  appear  to  be  simple  enough.  But  this 
easy  solution  did  not  satisfy  some  of  the  judges.  The  result  was, 
that  Chief  Justice  Taney,  Mr.  Justice  Daniel,  Mr.  Justice  Wood- 
bury, and  Mr.  Justice  Grier,  each  delivered  one  opinion  appli- 
cable to  all  the  cases  ;  Mr.  Justice  McLean  three  opinions, 
one  in  each  case  ;  Mr.  Justice  Catron  two  opinions,  one  in  the 
Massachusetts  and  Rhode  Island,  and  one  in  the  New  Hamp- 
shire case.,  I  will  endeavor  to  state,  in  a  very  brief  way,  the 
positions  of  each  of  the  members  of  the  court. 

§  353.  Opinion  of  Taney,  C.  J.  —  The  Chief  Justice  speaks 
first  of  the  Massachusetts  and  Rhode  Island  cases.  In  each 
the  liquor  sold  was  imported,  but  in  neither  of  them  was  the 
defendant  the  importer.  The  Chief  Justice  adopted  the  doc- 
trines announced  in  Brown  v.  Maryland ;  approved  of  that 
case,  and  held  that  the  liquor  having  passed  beyond  the  hands 
of  the  importer,  had  become  a  part  of  the  general  property  of 
the  state,  and  was  subject  alone  to  the  power  of  the  state  to 
regulate  purely  internal  commerce,  and  to  pass  police  laws. 
The  New  Hampshire  case  presented  a  different  state  of  facts. 
The  barrel  of  gin  was  bought  by  the  defendant  in  Boston, 
carried  by  sea  to  New  Hampshire,  and  there  sold  by  him  in 
bulk.  The  article  had,  therefore,  formed  a  part  of  the  inter- 
state commerce.  Chief  Justice  Taney  remarks  that  the  facts 
here  are  quite  different  from  those  in  Brown  v.  Maryland,  the 
state  statute  in  the  latter  case  applying  to  all  foreign  goods,  in 
respect  to  the  importation  of  which  Congress  had  fully  legis- 
lated. But  Congress  had  not  legislated  in  regard  to  goods  car  ■ 
ried  from  one  state  to  another  ;  the  navigation  laws  did  not 
apply  to  the  goods  which  may  be  transported,  but  only  to 
the  vessels  which  transport ;  the  foreign  importation  statutes 
cover  the  introduction  of  articles  from  abroad,  but  no  corre- 
sponding statute  applies  to  traffic  among  the  states.  In  the 
opinion  of  the  Chief  Justice  the  question  was  therefore  di- 
rectly presented,  whether  the  mere  grant  to  Congress  of 
power  to  regulate  commerce  was  exclusive   and   prohibitory 


230  THE    LICENSE   CASES. 

upon  the  states,  or  whether  it  requires  a  statute  of  the  national 
legislature,  passed  in  pursuance  of  such  grant,  to  oust  tlw 
states  of  jurisdiction.  He  adopted  the  latter  of  these  views; 
and  therefore  held  the  law  of  New  Hampshire  valid.  Tin 
case  which  he  principally  relied  upon,  as  confirmatory  of  hn. 
doctrines,  was  Wilson  v.  Blackbird  Creek  Company. 

This  judgment  of  Chief  Justice  Taney,  in  its  general  scop* 
and  conclusion,  cannot  be  successfully  criticized  ;  it  seems  tc 
be  in  harmony  with  prior  and  subsequent  decisions,  and  to  fall 
completely  within  the  propositions  stated  in  §  338. 

§  354.  Opinion  of  McLean,  J.  —  Mr.  Justice  McLean,  in 
his  opinion  upon  the  Massachusetts  case,  first  takes  the  same 
position  as  the  Chief  Justice,  holding  that,  as  the  defendant 
was  not  the  importer,  he  was  not  protected  by  Brown  v.  Mary- 
land. His  principal  ground,  however,  was,  that  the  license 
law  of  the  state  was  simply  and  strictly  a  police  regulation. 
As  I  have  already  said,  this  appears  to  be  the  rational  doctrine 
by  which  this  and  all  similar  controversies  may  be  easily  de- 
termined. The  opinion  in  the  Rhode  Island  case  was  identical 
with  that  given  upon  the  Massachusetts  statute. 

In  the  New  Hampshire  case,  the  learned  judge,  while  not 
accepting  all  the  reasoning  and  conclusions  of  the  Chief  Jus- 
tice, held  that  a  person  buying  goods  in  one  state,  and  carry- 
ing them  tc  another,  there  to  sell,  is  not,  in  any  proper  sense, 
an  importer  ;  and  that  it  is  not  to  be  understood  that  such 
goods  are  free  from  state  laws,  even  while  in  the  hands  of  the 
very  purchaser  who  brought  them  within  the  territory. 

§  355.  Opinion  of  Catron,  J.  —  Mr.  Justice  Catron,  in  the 
New  Hampshire  case,  rejects  the  doctrine  that  the  statute  was 
within  the  police  powers  of  a  state  ;  holding  that  if  states  may 
thus  put  restrictions  upon  the  introduction  of  goods  under  such 
an  assumed  authority,  they  might  absolutely  prohibit  the  im- 
portation of  those  articles  which  they  should  pronounce  to  be 
deleterious,  and  thus  the  power  of  Congress  to  regulate  com- 
merce would  be  defeated.  He  puts  his  decision  on  the  ground 
taken  by  Chief  Justice  Taney,  namely,  that  the  power  in  Con- 
gress is  not  exclusive  until  that  body  has  acted  ;  and  not  hav- 
ing acted,  the  door  was  open  for  the  state  legislature  to  pasa 


THE  POWER   TO   REGULATE   COMMERCE.  231 

such  regulations  of  commerce  as  it  saw  fit.  In  the  other  cases, 
Mr.  Justice  Catron  agreed  with  the  Chief  Justice,  that  the 
goods  having  passed  beyond  the  importer,  were  under  the  ex- 
clusive control  of  the  state  government. 

§  356.  Opinion  of  Daniel,  J.  —  Mr.  Justice  Daniel  was  the 
impracticable  member  of  the  court ;  a  true,  consistent  advocate 
of  state  sovereignty  of  the  strict  Calhoun  school.  He  was 
entirely  dissatisfied  with  the  reasoning  of  all  the  other  judges. 
He  held  that  the  court  had  always  been  wrong  ;  that  Congress 
had  no  exclusive  power  under  any  circumstances  ;  that  regu- 
lating commerce  does  not  include  the  power  to  make  rules  re- 
specting imported  goods,  but  should  be  confined  to  the  means 
of  transportation,  —  the  registry  of  ships,  etc. ;  that,  instead  of 
these  state  statutes  being  void,  most  of  the  laws  of  Congress 
were  unconstitutional. 

Mr.  Justice  Nelson  agreed  with  Chief  Justice  Taney  and 
Catron,  J.  Mr.  Justice  Woodbury  more  nearly  agreed  with 
Daniel,  J.  He  seems  to  have  argued  that  the  judgment  in 
Brown  v.  Maryland  was  wrong  ;  that  states  have  the  power  to 
pass  laws  which  place  a  restriction  upon  the  introduction  even 
of  foreign  goods. 

§  357.  In  reviewing  these  extraordinary  license  cases,  it  is 
plain  that  the  court  did  not  overrule  the  former  decisions  of 
Gibbons  v.  Ogden,  and  Brown  v.  Maryland.  On  the  other 
hand,  it  would  appear  that  five  of  the  justices,  Taney,  Catron, 
Daniel,  Nelson,  and  Woodbury,  concurred  in  the  proposition 
that  it  requires,  at  least,  a  statute  of  Congress,  passed  in  pur- 
suance of  the  general  grant  of  power  in  the  Constitution,  to 
inhibit  the  state  legislatures  from  enacting  laws  which  regu- 
late  commerce  ;  while  two  of  the  justices,  McLean  and  Grier, 
did  not  adopt  this  view  ;  two,  Daniel  and  Woodbury,  pushed 
their  conclusions  much  further  ;  and  two,  Wayne  and  Mc- 
Kinley,  were  absent,  or  took  no  part  in  the  decision.  What- 
ever rule,  however,  was  established  by  this  judgment,  was 
entirely  unsettled  by  the  next  cases  which  came  before  the 
same  high  tribunal  for  adjudication. 

§  358.  Tfie  Passenger  Cases :  Facts  and  Questions  at  issue. 
These  are  known  as  the  Passenger  Cases,1  (1849.)  There 
1  7  Howard's  R.  283. 


232  THE   PASSENGEB    CAS 

were  two  cases,  Smith  v.  Turner,  on  error  from  New  York, 
and  Norris  v.  The  City  of  Boston,  on  error  from  Massachusetts. 
Smith  and  Norris  were  respectively  sued  in  the  courts  below  ; 
judgments  were  recovered  against  them,  which  each  sought 
to  review.  The  same  legal  questions  was  involved  in  each 
case.  A  statute  of  New  York  provided  that  the  health  officer 
of  the  port  of  New  York  should  he  entitled  to  demand,  sue  for, 
and  recover  from  the  master  of  every  vessel  that  should  arrive 
at  that  port,  certain  sums  for  each  steerage  passenger  brought 
to  that  port  from  a  foreign  country,  or  from  another  state. 
The  moneys  thus  received  were  to  be  applied  towards  the 
support  of  a  marine  hospital.  Masters  were  subjected  to  cer- 
tain penalties  if  they  neglected  to  make  the  prescribed  pay- 
ment. A  statute  was  passed  in  Massachusetts  similar  in  its 
general  scope  and  important  features,  but  differing  somewhat 
in  detail.  Smith  was  sued  in  New  York,  and  Norris  in  Mas- 
sachusetts for  violating  these  laws.  The  only  defence  set  up 
in  each  case  was  the  unconstitutionality  of  the  state  statute. 
On  the  other  hand,  the  contention  was  that  the  provisions  of 
these  legislative  acts  were  merely  rules  of  internal  police,  and 
that  the  cases  were  identical  in  principle  with  that  of  Miln  v. 
The  City  of  New  York ;  also,  that  states  have  authority  to 
pass  such  laws,  even  assuming  them  to  be  regulations  of 
commerce. 

The  whole  doctrine  of  constitutional  construction  was  ex- 
amined at  great  length  bv  the  counsel  :  and  a  violent  effort 
was  again  made  both  at  the  bar  and  on  the  bench  to  recede 
from  the  earlier  decisions,  and  to  pronounce  the  jurisdiction 
of  the  states  over  commerce  virtually  concurrent  with  that  of 
the  general  government.  The  attempt  was  signally  and  finally 
defeated.  Five  members  of  the  court,  McLean,  Wayne,  Ca- 
tron, McKinley,  and  Grier,  agreed  in  pronouncing  the  state 
faws  void,  and  they  also  agreed  in  the  reasons  for  that  con- 
clusion. Four  members,  Taney,  Daniel,  Nelson,  and  Wood- 
bury, dissented,  holding  the  laws  valid. 

§  359.  Ojnnions  of  the  Judges.  —  Mr.  Justice  McLean 
reached  two  conclusions,  namely,  that  the  power  of  Congress 
to  regulate  commerce  is  exclusive  ;  and  that  the  state  statutes 


THE   POWER   TO   REGULATE   COMMERCE.  23^ 

jnder  review  are  regulations  of  commerce.  In  discussing  the 
second  of  these  propositions,  he  is  obliged  to  consider  the  ex- 
tent of  the  police  powers  which  a  state  may  lawfully  hold  and 
wield  ;  and  the  question  whether  persons  are  the  objects  of 
commerce.  He  holds  that  they  are,  and  rejects  the  contrary 
dictum  of  Barbour,  J.,  in  Miln  v.  New  York. 

Mr.  Justice  Wayne  delivered  an  opinion,  in  which,  after 
remarking  that  he  does  "  not  think  it  necessary  to  reaffirm, 
with  our  brother  McLean,  what  this  court  has  long  since  de- 
cided, that  the  constitutional  power  to  regulate  commerce  is 
exclusively  vested  in  Congress,  and  that  no  part  of  it  can  be 
exercised  by  a  state,"  added  that  he  fully  believed  such  to  be 
a  correct  interpretation  of  the  Constitution.  But  he  thought 
it  sufficient  then  to  say  that  Congress  had  legislated  on  the 
subject,  so  that  the  state  laws  in  question  were  repugnant  to 
the  acts  of  Congress.  He  formally  expressed  his  agreement 
with  the  judgment  of  McLean,  J. 

Mr.  Justice  Catron  gave  an  elaborate  opinion  in  which  he 
held  these  state  laws  to  be  in  direct  conflict  with  statutes  of 
Congress  passed  under  their  power  to  regulate  commerce. 
Mr.  Justice  MeKinley  concurred  with  McLean  and  Catron, 
JJ  ,  in  their  whole  reasoning,  and  then  proceeded  to  express 
these  views  in  his  own  language. 

Mr.  Justice  Grier  also  elaborately  examined  the  questions, 
holding  the  laws  under  review  not  to  be  police  regulations ; 
that  persons  were  objects  of  commerce  ;  that  Congress  had 
legislated,  covering  the  ground  occupied  by  these  local  acts, 
and  that  the  latter  were  therefore  void.  He  did  not  discuss 
the  more  general  topic  whether  the  mere  grant  to  Congress 
of  the  power  to  regulate  commerce  inhibits  the  states,  deeming 
that  a  mere  abstract  inquiry  of  no  practical  value  in  the  cases 
before  the  court. 

§  360.  Points  decided  in  this  Case.  —  Five  judges,  there- 
fore, agreed,  (1.)  That  when  Congress  has  passed  a  statute 
by  virtue  of  its  general  power  to  regulate  commerce,  the  states 
are  absolutely  prohibited  from  making  any  laws  which  will 
mterfere  with  the  exercise  of  national  authority  ;  and  this  is 
true  although  the  two  schemes  of  legislation  are  not  directed 


284  COOLEY   v.   THE   PORT   WARDENS. 

to  the  self-same  subject-matter.  (2.)  That  persons  as  welJ 
as  goods  are  the  ohjects  of  commerce.  (3.)  That  the  con- 
ceded power  to  adopt  regulations  of  internal  police  doesinot 
enable  the  states  to  pass  laws  similar  to  those  under  review. 
These  conclusions,  thus  reached  after  a  long  and  somewhat 
hitter  contest,  are  in  entire  harmony  with  the  propositions 
drawn  from  Gibbons  v.  Ogden,  and  Brown  v.  Maryland,  and 
stated  in  §  338. 

The  grounds  of  the  dissenting  judges  were  numerous;  the 
general  concurrent  power  of  the  states ;  the  authority  to  pass 
police  regulations  ;  a  denial  that  persons  can  be  the  objects  of 
commerce,  and  the  consequent  result  that  Congress  has  no 
authority  to  legislate  respecting  the  importation  of  persons, 
that  matter  being  left  exclusively  to  the  states.  These  were 
the  important  positions  adopted  and  enforced  by  the  minority. 

This  was  the  last  great  contest  in  the  Supreme  Court  be- 
tween the  forces  of  national  and  of  state  sovereignty.  The 
national  idea  was  triumphant  through  the  steadiness  of  two 
southern  members  of  the  court,  Wayne  of  Georgia,  and  Ca- 
tron of  Tennessee. 

§361.  Cooky  v.  The  Port  Wardens. —  In  1851  the  case 
of  Cooley  v.  The  Wardens  of  the  Port  of  Philadelphia  l  was 
decided.  It  involved  the  question  whether  states  may  pass 
laws  establishing  and  regulating  pilots,  and  prescribing  certain 
duties  to  the  masters  of  vessels  arriving  in  port,  in  respect  to 
such  pilots.  It  was  urged  that  this  power  was  exclusively  in 
Congress  under  the  general  grant  to  regulate  commerce.  The 
opinion  of  the  court  was  given  by  Mr.  Justice  Curtis,  and 
here  we  shall  find  the  court  beginning  to  state  the  general 
rule  in  a  form  somewhat  different  from  that  which  it  had  used 
since  the  time  of  Gibbons  v.  Ogden.  The  judgment  of  the 
court  held,  that  pilot  laws  are  regulations  of  commerce  ;  that 
the  power  to  regulate  commerce  includes  various  subjects, 
upon  some  of  which  there  should  be  a  uniform  rule,  and  upon 
others,  different  rules  in  different  localities  ;  that  the  power  is 
exclusive  in  Congress  in  the  former,  but  not  so  in  the  latter 
ilass ;  that  Congress  had  not  legislated  so  as  to  establish  any 
1  12  Howard's  R.  299. 


THE   POAVER   TO   REGULATE   COMMERCE.  235 

zommon  system  of  pilotage,  but  on  the  contrary  had  exhibited 
a  plain  intention  to  leave  this  matter  to  the  several  states ; 
that  there  being  no  act  of  Congress,  the  statute  of  Pennsylva- 
nia should  be  upheld.  The  whole  scope  and  tenor  of  the 
reasoning  in  this  judgment  concedes  that  Congress  may  pass 
systems  of  pilot  regulations,  and  that,  in  such  case,  the  several 
states  would  be  deprived  of  their  jurisdiction. 

§  362.  It  cannot  be  claimed  that  the  case  of  Cooley  v.  The 
Port  Wardens,  in  any  degree  lowers  the  standard  of  the  na- 
tional authority,  and  exalts  that  of  the  states.  In  fact,  the 
rule  as  here  stated,  is  even  stronger  than  had  ever  before  re- 
ceived the  sanction  of  the  court.  For  it  is  declared  that  in 
respect  to  one  class  of  commercial  regulations,  the  power  of 
Congress  is,  ipso  facto,  exclusive,  whether  the  power  be  exer- 
cised or  not ;  but  in  respect  to  another  class  of  regulations,  the 
power  is  only  exclusive  when  Congress  shall  have  acted  undei 
it,  and  until  such  action,  the  states  have  a  concurrent  juris- 
diction. Whatever  individual  judges  may  have  said,  the  court 
had  never  before  gone  further  than  to  assert  the  latter  rule  in 
respect  to  all  species  and  classes  of  commercial  regulations. 

It  is  evident,  also,  that  the  decision  is  in  complete  harmony 
with  the  prior  cases  in  the  same  court.  Pilot  laws  are  regu- 
lations of  commerce  ;  they  also  fall  within  the  department  of 
police  rules,  for  they  relate  to  the  well-ordered  government 
of  harbors,  and  of  vessels  therein.  As  Congress  had  passed 
no  general  statute  on  the  subject  of  pilotage,  and  no  statute 
applying  to  the  Port  of  Philadelphia,  the  door  was  open  for 
state  legislation.  'It  would  be  a  very  forced  construction  to 
say  that  the  navigation  and  importation  laws  covered  this 
subject-matter. 

§  363.  Pennsylvania  v.  The  Wheeling  Bridge  Company.  — 
In  1851  was  first  decided  the  case  of  Pennsylvania  v.  The 
Wheeling  Bridge  Company.1  The  facts  necessary  to  our  pur- 
pose were  few.  The  State  of  Virginia  had  incorporated  the 
defendants,  and  authorized  them  to  construct  a  suspension 
bridge  across  the  Ohio  River  at  Wheeling,  which  had  been 
Jone.  The  State  of  Pennsylvania,  deeming  her  public  inter- 
1  13  Howard's  R.  518. 


236  THE   WHEELING  BEIDGE   CASE. 

ssts  injured  by  this  bridge,  brought  a  suit  in  the  Supreme 
Court,  praying  that  the  bridge  might  be  removed  as  a  nuis- 
ance. The  first  question  discussed  and  decided  was  one  of 
jurisdiction  merely,  whether  the  suit  could  be  maintained. 
This  was  answered  in  the  affirmative,  but  as  it  is  entirely 
foreign  to  our  present  inquiry,  I  pass  it  by.  It  appeared,,  in 
fact,  that  the  bridge  did  hinder  the  passage  of  boats  ascending 
and  descending  the  river  to  and  from  points  above  ;  and  at 
certain  stages  of  water  entirely  prevented  the  transit  of  large 
boats.  It  also  appeared  that  Congress  had  repeatedly  recog- 
nized the  Ohio  as  a  navigable  stream  and  channel  of  commerce, 
but  had  never  enacted  any  laws  touching  the  erection  of 
bridges  over  that  watercourse.  The  plaintiff  claimed  that  the 
bridge  was  a  nuisance,  and  that  its  owners,  the  company, 
could  not  justify  their  injury  by  an  appeal  to  the  act  of  the 
Virginia  legislature,  because  that  statute,  in  authorizing  a 
bridge  which  did,  in  fact,  hinder  free  commerce  on  the  Ohio, 
was  prohibited  by  the  power  given  to  the  general  government, 
and  laws  passed  in  execution  thereof. 

§  364.  Judgment  of  the  Court.  —  These  positions  were 
adopted  by  the  court,  which  held,  that  the  power  to  regulate 
commerce  among  the  states  extends  to  the  navigable  streams 
whereon  that  commerce  is  carried  ;-  that  commerce  includes 
navigation  ;  that  Congress  had  recognized  the  Ohio  as  a  great 
navigable  river,  and  the  highway  of  an  immense  commerce  ; 
that  the  bridge  interfered  with  such  navigation  ;  that  the  Vir- 
ginia statute  authorizing  the  bridge  was  therefore  in  conflict 
with  the  power  granted  to  and  exercised  by  Congress. 

Chief  Justice  Taney  dissented,  on  the  ground  that  Congress 
had  passed  no  statute  respecting  the  erection  of  bridges  over 
the  Ohio.  Mr.  Justice  Daniel,  of  course,  dissented.  The  de- 
cree of  the  court  was  that  the  bridge  should  be  removed, 
unless  within  a  certain  time  it  should  be  raised  to  such  a  height 
as  to  admit  all  steamers  at  all  stages  of  the  water. 

§  365.  Pennsylvania  v.  TJie  Bridge  Company  (No.  2).  — 
After  the  foregoing  judgment  had  been  given,  Congress  passed 
a  statute  legalizing  the  bridge  in  its  then  condition,  and  order- 
ing  it  to  stand  at  its  then  height.     The  question,  therefore, 


THE   POWER   TO   REGULATE   COMMERCE.  237 

arose  whether  this  act  was  within  the  scope  of  the  congres- 
sional authority.1  The  court  held,  that  Congress,  Inning  power 
to  regulate  commerce,  might  place  obstructions  upon  its  free 
exercise,  —  which  they  are  constantly  doing,  —  and  assuming 
the  bridge  to  be  such  an  obstruction,  the  act  of  the  national 
legislature  was  not  an  undue  exercise  of  power. 

§  366.  This  case  is  important  in  both  its  aspects.  The  first 
decision  reaffirms  in  the  most  emphatic  manner  the  doctrines 
of  Gibbons  v.  Ogden  ;  and  directly  and  pointedly  holds  that  the 
national  legislation  need  only  embrace  in  a  very  general  and 
incidental  manner  the  subject-matter  covered  by  the  state  law, 
in  order  to  avoid  the  latter.  Here  Congress  had  never  uttered 
a  word  or  promulgated  a  rule  respecting  bridges  ;  it  had  only 
recognized  the  Ohio  as  a  navigable  stream  over  which  com- 
merce is  carried  on.  Yet  this  recognition  was  deemed  a  suffi- 
cient act  under  the  power  to  regulate  commerce  ;  and  the  state 
authority  to  erect  a  bridge,  which  should  interfere  with  that 
commerce,  was  destroyed. 

§  367.  Smith  v.  Maryland.  —  The  case  succeeding  in  order 
of  time  was  Smith  v.  The  State  of  Maryland.2  The  territorial 
limits  of  Maryland  include  part  of  Chesapeake  Bay  below 
low-water  mark.  These  waters  furnish  a  habitat  for  oysters, 
and  the  fishery  thereof  is  an  important  branch  of  industry.  A 
law  of  the  state  forbade  persons  to  fish  for  oysters  with  a  scoop 
or  drag,  under  certain  penalties.  Smith,  the  owner  of  a  ves- 
sel enrolled  and  licensed  as  a  coasting  vessel,  under  the  laws 
of  the  United  States,  violated  the  Maryland  statute,  and  the 
action  was  brought  to  recover  the  penalty.  The  sole  defence 
was  the  invalidity  of  the  state  legislation.  The  court  held  it 
to  be  valid  ;  to  be  a  mere  exercise  of  territorial  jurisdiction,  or 
in  other  words,  of  jurisdiction  over  the  soil  of  which  the  state 
was  the  paramount  owner. 

§  368.  Sinnot  v.  Davenport.  —  In  Sinnot  v.  Davenport,3  the 
Supreme  Court  unanimously  held  that  a  statute  of  Alabama 
requiring  the  owners  of  steamboats  navigating  the  waters  of 
Aiat  state,  before  such  boats  can  leave  the  port  of  Mobile,  tr 

1  See  Pennsylvania  v.  Bridge  Company,  18  Howard's  R.  421. 

2  18  Howard's  R.  71.  3  22  Howard's  R.  227, 


238  THE   PHILADELPHIA   BRIDGE    CV 

file  a  statement  in  writing  setting  forih  the  name  of  the  vessel, 
the  name  of  the  owner,  and  his  place  of  residence,  and  the  in* 
terest  of  each  owner,  was  wholly  voiu  and  inoperative,  so  far 
as  it  applied  to  steamboats  enrolled  or  registered  under  the 
laws  of  the  United  States.  An  endeavor  was  made  by  the 
counsel  representing  the  State  of  Alabama,  to  convince  the 
court  that  the  statute  was  a  mere  regulation  of  police  ;  but 
the  attempt  entirely  failed,  and  Gibbons  v.  Ogden  was  upheld 
and  followed. 

§  3G9.  Gihnan  v.  Philadelphia. — We  now  come  to  the 
most  recent  case  decided  by  the  Supreme  Court  of  the  United 
States,  a  case  which  is  certainly  in  conflict  with  some  of  the 
former  adjudications  which  have  been  referred  to,  Gihnan  v. 
Philadelphia.1  The  important  facts  are  as  follows  :  The 
Schuylkill  River  divides  the  city  of  Philadelphia,  and  empties 
into  the  Delaware  ;  it  is  tidal  for  about  seven  and  a  half  miles 
from  its  mouth,  and  is  navigable  for  vessels  drawing  from 
eighteen  to  twenty  feet  of  water;  there  is  a  very  extensive 
commerce  in  coal  upon  it,  which  employs  a  large  number  of 
barges  and  small  steamers  that  are  enrolled  and  licensed  under 
United  States  laws.  There  are,  and  have  long  been,  bridges 
across  it  within  the  limits  of  the  city,  some  with  draws,  others 
permanent.  The  plaintiff  was  the  owner  of  coal  wharves  on 
this  river,  below  any  bridge,  and  carried  on  an  extensive  busi- 
ness, but  was  not  a  navigator,  or  the  owner  of  licensed  vessels. 
The  City  of  Philadelphia  was  authorized  by  a  statute  of  the 
Pennsylvania  legislature  to  erect,  and  was  proceeding  to  erect, 
a  new  bridge  across  the  river,  below  all  the  others,  and  below 
the  plaintiff's  wharves.  This  bridge  would  be  a  public  con- 
venience ;  but  being  permanent,  and  only  thirty  feet  above  the 
water,  it  would  greatly  interrupt  the  navigation  of  the  river, 
would  absolutely  prevent  masted  vessels  from  passing  it,  and 
would  be  a  serious  interruption  to  the  plaintiff's  business. 
Congress  had  established  the  district  of  Philadelphia,  including 
u  all  the  shores  and  waters  of  the  River  Delaware,  and  the 
rivers  and  waters  connected  therewith,  lying  within  the  State 
of  Pennsylvania,"  and  had  made  the  City  of  Philadelphia  the 
1  3  Wallace's  R.  713. 


THE   POWER   TO   KEGULATE   COMMERCE.  239 

port  of  entry  for  such  district.  The  plaintiff  sought  by  this 
suit  to  restrain  the  city  from  building  the  contemplated 
bridge. 

§  370.  Opinion  of  the  Court.  —  The  opinion  of  the  court  was 
given  by  Mr.  Justice  Swayne.  He  laid  down  the  general  rule 
which  I  have  already  stated  in  §  331 ;  and  in  its  application 
stated  that  the  erection  of  bridges  fell  within  the  second  ehus 
of  commercial  regulations,  over  which  the  states  have  juris- 
diction, unless  Congress  should  deprive  them  of  that  authority 
by  legislating  upon  the  same  subject.  As  Congress  had  never 
passed  any  statute  touching  the  erection  of  bridges  over  such 
streams  as  the  Schuylkill,  the  power  of  the  states  was  unlim- 
ited. The  case  mainly  relied  upon  by  the  court  was  Wilson 
v.  Blackbird  Creek  Company. 

Mr.  Justice  Clifford  delivered  an  elaborate  dissenting  opin- 
ion, in  which  Wayne  and  Davis,  JJ.,  concurred.  He  took 
the  ground  that  Congress  had  already  sufficiently  legislated  to 
cover  the  subject-matter  and  to  deprive  the  state  of  power  to 
build  the  bridge  in  question.  This  legislation  consisted  in  the 
navigation  laws,  which,  as  had  been  repeatedly  held,  enable 
vessels  registered  or  enrolled  and  licensed  to  enter  all  navi- 
gable waters  free  from  state  interference  ;  but  especially  in  the 
statute  declaring  Philadelphia  to  be  a  port  of  entry.  He  as- 
serted that  Wilson  v.  Blackbird  Creek  Company  had  no  appli- 
cation ;  because  the  statute  of  Delaware  was  upheld  in  that 
case  as  a  measure  of  police,  a  means  to  reclaim  marsh  lands 
and  improve  the  health  of  the  neighborhood. 

§  371.  I  cannot  refrain  from  saying,  that  the  dissenting  opin- 
ion of  Judge  Clifford  is  a  most  overwhelming  answer  to  the 
positions  taken  by  the  court.  Laying  out  of  view  the  Blackbird 
Creek  case,  the  judgment  in  Gilman  v.  Philadelphia  is  opposed 
.o  the  whole  scope  and  tenor  of  all  prior  decisions,  and  is  in 
direct  conflict  with  Pennsylvania  v.  Wheeling  Bridge  Com- 
pany. Indeed,  these  two  cases  are  absolutely  identical  in 
their  facts ;  in  each  the  plaintiff  sought  to  protect  his  rights  as 
proprietor  on  the  banks  of  the  river  above  the  bridge  ;  in  each 
a  state,  by  its  statute  authorizing  a  permanent  bridge,  had  in- 
terfered with   those  rights;  in  neither  Jiad  Congress  directly 


240  THE  rillLADKLPIllA    BRIDGE    cask. 

legislated  upon  the  subject  of  bridges.  Yet  the  court  over- 
threw the  statute  of  Virginia,  and  upheld  that  of  Pennsylva- 
nia ;  they  deliberately  adopted,  in  the  Philadelphia  case,  the 
position  of  Chief  Justice  Taney  in  the  dissenting  opinion  which 
he  delivered  in  the  Wheeling  case,  although  in  the  latter 
Congress  had  only  acted  by  recognizing  the  Ohio  as  a  navi- 
gable stream,  while  in  the  former,  Congress  had  directly  legis- 
lated by  declaring  Philadelphia  to  be  a  port  of  entry.  I 
repeat  that,  while  it  cannot  be  supposed  the  court  intended  to 
overrule  the  long  series  of  great  and  most  ably  considered  cases 
which  have  been  referred  to  in  the  foregoing  sections,  they 
have  placed  themselves  in  antagonism  to  many  of  those  de- 
cisions. 

§  372.  Is  there  any  explanation  of  this  seeming  inconsist- 
ency, this  departure  from  old  landmarks  ?  I  think  there  is, 
and  that  it  is  hinted  at  in  one  sentence  of  Mr.  Justice  Swayne's 
opinion :  1  "It  must  not  be  forgotten  that  bridges,  which  are 
connecting  parts  of  turnpikes,  streets,  and  railroads,  are  means 
of  commercial  transportation,  as  well  as  navigable  rivers,  and 
that  the  commerce  which  passes  over  a  bridge  may  be  much 
greater  than  would  ever  be  transported  on  the  water  it  ob- 
structs." The  court  was  pressed  with  the  fact  that  the  inter- 
nal commerce  of  the  country,  carried  on  upon  railways,  had 
grown  to  such  an  enormous  size  as  to  entirely  outweigh  in  im- 
portance the  traffic  upon  most  inland  waters  although  navi- 
gable. If  these  navigable  streams  cannot  be  bridged,  the 
actual  commerce  among  the  several  states  will  suffer  vastly 
more  than  it  would  were  these  interior  streams  to  be  made  ab- 
solutely impassable.  The  court  was  forced,  therefore,  to  do 
substantial  justice  by  a  somewhat  illogical  and  inconsistent 
process. 

§  373.  This  subject  of  bridges,  authorized  by  state  laws  to 
be  built  over  navigable  streams,  deserves  a  little  further  re- 
mark. Two  cases  may  arise  :  (1.)  The  stream  may  be 
technically  navigable,  but  Congress  may  not  have  established 
any  port  of  entry  upon  it  at  or  above  the  point  where  the  pro- 
posed bridge  or  obstruction  is  to  cross  ;  in  other  words,  may 
i  3  Wallace's  R.  729. 


THE  POWER   TO   REGULATE   COMMERCE.  241 

not  have  legislated  in  respect  to  this  particular  stream.  (2.) 
The  river  may  be  navigable  and  Congress  may  have  estab- 
lished a  port  of  entry  at  or  above  the  point  where  the  proposed 
obstruction  is  to  cross  ;  in  other  words,  may  have  legislated  in 
regard  to  this  particular  water-course.  Each  case  may,  again, 
present  itself  under  two  aspects  :  the  bridge  may  be  a  com- 
plete and  permanent  obstruction  and  entirely  prevent  the 
passage  of  vessels  used  in  commerce  ;  or  it  may  only  hinder 
and  delay  without  prohibiting,  such  transit.  When  the  latter 
circumstances  exist,  there  arises  a  question  of  fact ;  the  amount 
of  hindrance  and  delay  must  be  determined.  If  this  amount 
be  not  substantial,  there  is  certainly  no  interference  by  the 
state  with  the  prerogatives  of  the  national  legislature.  When 
the  former  circumstances  exist,  when  the  hindrance  is  perma- 
nent and  complete,  the  Wheeling  Bridge  case  and  the  Phila- 
delphia Bridge  case  will  apply.  The  Supreme  Court  cannot, 
however,  be  supposed  to  have  established,  as  a  general  rule, 
that  a  state  may  entirely  obstruct  the  navigation  of  its  streams 
connecting  with  the  ocean,  whenever  Congress  has  not  ex- 
pressly legislated  in  reference  to  bridge-building.  It  cannot 
be  supposed  that  New  York  may  permit  a  bridge  to  cross 
the  Hudson  River,  or  the  East  River,  between  Brooklyn  and 
New  York  City,  in  such  a  manner  as  to  materially  hinder,  de- 
lay, or  in  any  way  interfere  with  the  immense  traffic  which 
passes  over  those  streams. 

§  374.  I  have  thus  abstracted  all  the  decisions  and  judg- 
ments of  the  national  tribunal  of  last  resort  which  involve  the 
questions  under  discussion.  It  will  be  seen,  I  think,  that  they 
fully  support  the  propositions  stated  in  §§  330—332  and  §  338. 
No  apology  is  needed  for  this  long  analysis.  The  constitutional 
construction  which  we  have  examined,  embraces  subjects  of 
the  utmost  importance  and  magnitude  ;  it  has  engaged  the 
attention  of  the  ablest  men  who  have  adorned  the  bar  or  the 
bench  ;  it  has  called  forth  the  most  animated  discussions  of 
counsel,  and  the  most  profound  judgments  of  the  court ;  it  in- 
volves the  capacities  and  functions  of  the  national  and  state 
governments  ;  its  determination  and  settlement  have  led  to  the 

16 


242  EXTENT   OF   THE   POWER. 

establishment  on  a  sure  and  firm  basis  of  the  legislative  powei 
of  the  United  States. 

Second.    The  Extent  of  the  Poiver. 

§  875.  I  am  now  brought  to  the  consideration  of  the  second 
division  intc  which  the  whole  subject  was  separated  :  The  ex- 
tent of  the  power  to  regulate  commerce  ;  or,  what  particular 
acts  may  Congress  pass  by  virtue  thereof? 

The  dicta,  opinions,  and  judgments  already  cited  partially 
answer  this  question  ;  but  we  have  been  virtually  considering 
what  the  states  may  do  ;  we  now  ask  what  may  Congress  do  ? 
Very  few  cases  have  arisen  in  which  this  question  has  been 
directly  presented  to  the  Supreme  Court,  and  the  validity  of 
the  national  legislation  been  passed  upon.  Whatever  has 
been  said  by  the  judges,  has  generally  been  by  way  of  argu- 
ment or  illustration.  It  is  true,  in  Brown  v.  Maryland,  the 
course  of  his  reasoning  led  C.  J.  Marshall  to  examine  the 
power  of  Congress  to  regulate  the  importation  of  goods ;  the 
Passenger  cases  established  its  power  over  the  introduction  of 
persons  ;  the  Wheeling  Bridge  case  determined  that  it  might 
maintain  a  bridge  over  a  navigable  stream  flowing  through  or 
between  two  or  more  states. 

§  376.  As  an  introduction  to  the  subject  under  discussion,  I 
will  quote  some  remarks  of  C.  J.  Marshall  on  the  extent  of 
the  power  of  Congress  to  regulate  commerce,  which  he  made 
in  the  great  case  of  Gibbons  v.  Ogden.  He  says  : l  "  The 
subject  to  be  regulated  is  commerce  ;  and  our  Constitution 
being,  as  was  aptly  said  at  the  bar,  one  of  enumeration  and 
not  of  definition,  to  ascertain  the  extent  of  the  power  it  be- 
comes necessary  to  settle  the  meaning  of  the  word.  The 
counsel  for  the  appellee  would  limit  it  to  traffic,  to  buying  or 
Belling,  or  the  interchange  of  commodities,  and  do  not  admit 
that  it  comprehends  navigation.  This  would  restrict  a  general 
term  applicable  to  many  objects,  to  one  of  its  significations. 
Commerce  undoubtedly  is  traffic  ;  but  it  is  something  more  ; 
it  is  intercourse.  It  describes  the  commercial  intercourse  be- 
tween nations  and  parts  of  nations  in  all  its  branches,  and  is 
1  9  Wheaton's  R.  189. 


THE   POWEE   TO   EEGULATE   COMMERCE  243 

regulated  by  prescribing  rules  for  carrying  on  that  intercourse. 
The  mind  can  scarcely  conceive  a  system  for  regulating  com- 
merce between  nations,  which  shall  exclude  all  laws  concern- 
ing navigation,  which  shall  be  silent  on  the  admission  of  ves- 
sels  of  one  nation  into  the  ports  of  the  other,  and  be  confined 
to  the  prescribing  rules  for  the  conduct  of  individuals  in  the 
actual  employment  of  buying  and  selling  or  barter." 

§  377.  Again  i1  To  what  does  this  power  extend?  The 
Constitution  informs  us,  to  commerce  with  foreign  nations, 
and  among  the  several  states,  and  with  the  Indian  tribes.  It 
has,  we  believe,  been  universally  admitted,  that  these  words 
comprehend  every  species  of  intercourse  between  the  United 
States  and  foreign  nations.  No  sort  of  trade  can  be  carried 
on  between  this  country  and  any  other  to  which  this  power 
does  not  extend.  It  has  been  truly  said,  that  commerce,  as 
the  word  is  used  in  the  Constitution,  is  a  unit,  every  part  of 
which  is  indicated  by  the  term.  If  this  be  the  admitted  mean- 
ing of  the  word  in  its  application  to  foreign  nations,  it  must 
carry  the  same  meaning  throughout  the  sentence,  and  remain 
a  unit,  unless  there  be  some  plain,  intelligible  cause  which 
alters  it. 

The  subject  to  which  the  power  is  next  applied  is,  to  com- 
merce among  the  several  states.  The  word  "  among  "  means 
intermingled  with.  A  thing  which  is  among  others  is  inter- 
mingled with  them.  Commerce  among  the  states  cannot  stop 
at  the  external  boundary  line  of  each  state,  but  may  be  intro- 
duced into  the  interior.  It  is  not  intended  to  say  that  these 
words  comprehend  that  commerce  which  is  completely  inter- 
nal, which  is  carried  on  between  man  and  man  in  a  state,  or 
between  different  parts  of  the  same  state,  or  which  does  not 
extend  to  or  affect  other  states.  Comprehensive  as  the  word 
among  is,  it  may  very  properly  be  restricted  to  that  commerce 
which  concerns  more  states  than  one." 

§   378.    These    propositions,   so    clearly   conceived,   and    so 

forcibly  stated  by  the    great    Chief  Justice,   have    remained 

unanswered,  a  constant  guide  to  the  courts  in  interpreting  the 

Constitution,  and  to  Congress  in  legislating  under  it.      What 

1  9  Wheaton's  R.  193. 


214  EXTENT   OF   THE   POWER. 


laws,  then,  may  Congress  pass  under  this  general  grant  of 
power  ? 

The  two  controlling  words  are  "  commerce  "  and  "  regu- 
late." We  are  to  fix  the  meaning  of  these  terms,  and  then 
apply  the  general  principle,  that  the  grant  of  power  includes 
all  the  means  which  are  appropriate  for  making  it  effective. 

Commerce  is  a  word  of  very  wide  signification.  It  includes 
the  fact  of  intercourse  and  of  traffic,  and  the  subject-matter  of 
intercourse  and  traffic.  The  fact  of  intercourse  and  traffic, 
again,  embraces  all  the  means,  instruments,  and  places,  by 
and  in  which  intercourse  and  traffic  are  carried  on  ;  and,  fur- 
ther still,  comprehends  the  act  of  carrying  them  on  at  these 
places,  and  by  and  with  these  means.  The  subject-matter  of 
intercourse  or  traffic  may  be  either  things  —  goods,  chattels, 
merchandise  —  or  persons.  All  these  may  therefore  be  regu- 
lated. 

Intercourse  and  traffic  need  not  be  carried  on  over  the 
ocean,  or  waters  naturally  navigable  connecting  with  the 
ocean.  Inland  lakes  and  rivers,  artificial  canals,  roads,  turn- 
pikes, and  railways,  are  channels  for  intercourse  and  traffic  ; 
and  commerce  carried  on  by  these  means,  —  growing  every 
day  in  importance,  —  if  foreign  or  inter-state,  is  as  much  the 
subject  of  regulation  by  Congress  as  that  transacted  over  the 
highway  of  nations. 

"  Regulating  "  means  prescribing  rules  for  carrying  on  the 
matter  regulated  ;  which  rules  may  either  place  restraints  and 
hindrances  upon  the  free  conduct  of  the  intercourse  and  traffic, 
or  may  remove  all  restrictions  upon  the  free  enjoyment  and 
exercise  thereof.  Whether  Congress  shall  adopt  one  or  the 
other  of  these  systems,  and  propose  to  itself  one  or  the  other 
of  these  ends,  is  entirely  a  matter  of  policy,  with  which  courts 
have  no  concern. 

§  379.  Under  this  analysis  we  shall  discover  that  Congress 
has  power  to  pass  laws  regulating 

(1.)  Places  where  traffic  and  intercommunication  with 
foreign  nations  and  among  the  several  states  may  be  trans- 
acted ;  the  ports  at  which  ships  may  enter,  discharge,  load,  be 
registered,  be  cleared,  and  the  like  ;  also  laws  in  relation  tc 


THE   POWER   TO   REGULATE    COMMERCE.  215 

the  improvement  of  harbors,  the  clearing  out  of  navigable 
rivers,  the  construction  of  lighthouses,  piers,  breakwaters, 
levees,  and  all  such  other  accessories  and  appendages  to  the 
mere  places  for  carrying  on  commerce,  by  which  those  places 
are  made  more  fit  and  convenient  for  the  purpose.  I  have  no 
doubt  that  Congress  has  full  power  to  build  or  repair  the 
levees  of  the  Mississippi  River,  and  thus  to  regulate  com- 
merce among  the  several  states.  These  and  such  measures 
have  been  adopted  and  carried  out  from  the  commencement 
of  the  present  government  ;  the  authority  of  the  legislature 
has  been  disputed  by  verbal  theorists ;  but  the  acquiescence  in 
their  propriety  is  now  universal. 

§  380.  (2.)  The  means  and  instruments  by  which  traffic  and 
intercommunication  may  be  carried  on.  Under  this  head  are 
included  that  mass  of  statutes  which  collectively  are  known  as 
the  "  Registry  "  and  "  Navigation  "  laws.  The  policy  of  such 
acts  is  to  favor  American  shipbuilders  and  owners.  They  give 
the  entire  coasting  trade  to  American  bottoms;  they  prohibit 
the  importation  of  foreign  goods  in  any  but  American  ships, 
except  the  vessel  be  owned  by  citizens  of  the  country  in  which 
the  goods  were  grown  or  manufactured,  or  which  contains 
their  usual  place  of  export.  To  compel  the  observance  of  this 
policy,  they  require  all  American  bottoms  engaged  in  the 
foreign  trade  to  be  registered  in  such  a  manner  that  the 
maker,  the  owners,  and  the  master  shall  distinctly  appear  ; 
and  those  engaged  in  the  coasting  trade  to  be  enrolled  and 
licensed.  They  forbid  any  vessel  to  enter  or  depart  from  our 
ports  without  official  papers  showing  its  nationality,  owner- 
ship, destination,  and  the  object  of  its  voyage. 

§  381.  Other  statutes,  passed  under  the  same  exercise  of 
legislative  power,  regulate  the  use  and  conduct  of  the  ships 
themselves ;  provide  for  the  safety  of  crew  and  passengers  by 
prescribing  rules  concerning  boilers,  engines,  medicines,  bulk, 
ventilation,  and  the  like  ;  also  the  number  of  the  crew,  the 
"orm  and  nature  of  their  contract  of  hiring,  their  rights  as 
against  masters  and  owners ;  the  powers  of  officers,  etc.  The 
number  of  such  statutes  is  great,  and  their  particular  objects 
are  numerous.     Some  require  the  appointment  of  new  classes 


246  EXTENT   OF   THE   POWER. 

of  official  persons,  such  as  inspectors  of  steamboats,  etc.  Nc 
one  lias,  as  yet,  questioned  the  authority  of  Congress  to  enact 
such  laws. 

§  382.  But  may  Congress,  under  the  general  power  to  reg- 
ulate commerce  aiming  the  states,  establish,  construct,  or  au- 
thorize the  construction  of  bridges,  roads,  canals,  or  railways  '? 
In  the  first  place,  it  is  to  be  remarked,  that  if  the  commerce 
which  is  to  be  affected  or  regulated  by  the  bridge,  railway,  or 
other  means  of  transit,  be  entirely  within  the  boundaries  of  a 
state.  Congress  has  no  jurisdiction  over  the  subject  ;  the  state 
authority  is  complete.  But  if  that  commerce  be  foreign  or 
inter-state,  I  think  the  power  in  the  national  legislature  exists. 
Indeed,  we  hardly  yet  know  the  scope  and  efficacy  of  our 
supreme  organic  law  ;  the  results  which  may  be  reached  by 
applying  the  general  principles  announced  by  the  tribunal  of 
last  resort.  That  court  has  decided  that  Congress  may 
maintain  a  bridge  erected  over  a  navigable  stream  running  be- 
tween  several  states  ;  and  if  it  may  maintain,  it  may  also  cause 
to  be  erected.  The  prevailing  opinion  in  Gilman  v.  Philadel- 
phia not  only  assumed,  but  plainly  declared,  that  the  legisla- 
ture might  provide  for  bridging  such  streams  as  the  Schuyl- 
kill, although  they  may  be  entirely  within  the  territory  of  a 
single  state,  since  they  are  navigable  from  the  ocean.  In- 
deed, Congress  has  several  times  exercised  this  authority  by 
authorizing  bridges  to  be  constructed  over  the  Mississippi 
River. 

It  would  seem  that  the  same  principles  apply  to  the  estab- 
lishment of  railways  and  canals.  The  legislature  of  the  nation 
has  exerted  but  a  small  portion  of  its  power  to  regulate  com- 
merce among  the  several  states.  It  may  well  be  that  the  vast 
and  increasing  importance  of  this  intercourse  and  traffic,  and 
the  evil  results  of  partial,  and,  to  a  certain  extent,  antagonistic 
state  legislation,  will  convince  the  people  of  the  advantage  and 
even  necessity  of  rules  as  uniform  as  those  which  regulate 
foreign  commerce.  When  this  time  arrives  it  will  be  found 
that  Congress,  by  applying  the  principles  and  doctrines  al- 
ready  settled,  has  ample  power  to  accomplish  the  desired  end. 
[t  should  be   stated,  however,   that   in   Conway  v.   Taylor's 


THE   POWER   TO   REGULATE    COMMENCE.  247 

Lessee,1  the  Supreme  Court  held  that  Congress  could  not 
establish  or  regulate  ferries. 

§  383.  (3.)  The  subject-matter  of  Commerce.  Under  this 
head  would  properly  fall  all  regulations  touching  the  importa- 
tion and  exportation  of  particular  articles  and  persons.  It  is 
true  that  Congress  has  done  little  under  this  branch  of  its 
authority,  except  in  its  revenue  laws,  which  have  a  double 
relation  to  commerce  and  to  taxation.  There  are  some  other 
illustrations  of  this  kind  of  regulation.  A  statute  is  in  exist- 
ence controlling  the  importation  of  adulterated  drugs,  and  pro- 
viding for  the  inspection  of  medicines  brought  from  abroad. 
Another  law  forbids  the  importation  of  immoral  books,  pict- 
ures, and  the  like. 

§  384.  (4.)  Statutes  relating  to  the  liabilities  of  ship-own- 
ers and  others  engaged  in  commerce,  either  declaring,  alter- 
ing, or  supplementing  the  rules  of  the  Common  Law,  or 
general  Law  Merchant.  Congress  has  assumed  to  enact  laws 
of  this  description,  and  having  this  effect.  In  1851  it  passed 
a  statute  entitled,  "An  act  to  limit  the  liability  of  shipowners," 
etc.  This  act  provides  in  substance,  among  other  things,  that 
no  owners  of  vessels  shall  be  liable  for  any  damage  to  goods 
and  merchandise  caused  by  fire  on  board  the  vessel  in  which 
the  commodities  are  laden,  unless  the  fire  were  caused  by  the 
design  or  neglect  of  the  owner  himself.  Provisions  of  the 
same  law  modify  the  liability  resulting  from  collisions  and 
other  negligent  or  wrongful  acts.  Here  is  a  plain  and  most 
material  change  in  the  rules  of  the  common  law  ;  for,  under 
that  law,  the  common  carrier  is  an  insurer  against  all  loss  and 
damage,  except  that  caused  by  the  act  God  or  of  the  public 
enemies. 

The  question  whether  this  statute  is  valid,  has  never  been 
directly  presented  to  the  Supreme  Court ;  but  it  has  been 
brought  before  that  tribunal  in  such  a  way  that  their  silence 
was  as  emphatic  in  favor  of  the  validity  as  a  positive  and  for- 
mal judgment.  In  Moore  v.  American  Transportation  Com- 
pany,2 the  defendants  ran  a  vessel  on  Lake  Erie,  duly  enrolled 
and  licensed  as  a  coaster.  Moore  sued  them  for  the  loss  of 
1  1  Black's  K,  603.  2  24  Howard's  R.  1. 


248  EXTENT   OF   THE   POWER. 

goods  on  board  the  vessel  by  fire.  The  defence  was  based  on 
this  statute.  At  the  Common  Law  the  company  would 
plainly  have  been  liable.  The  statute  contains  a  proviso  that 
it  is  not  to  apply  to  the  "  internal  navigation  "  of  the  country. 
The  only  question  discussed  and  decided  was,  whether  the 
navigation  of  the  great  lakes  was  inland  navigation.  The 
court  held  that  it  was  not,  and  that  the  company  was  free 
from  liability.  Even  Mr.  Justice  Daniel,  who  dissented,  and 
who,  as  we  have  seen,  was  so  eager  to  scent  any  invalidity  in 
an  act  of  Congress,  and  who  would  so  much  limit  the  powers 
of  that  body,  placed  his  dissent  entirely  upon  the  ground  that 
the  great  lakes  do  constitute  a  part  of  the  "  inland  navigation  " 
of  the  country.  As  the  unconstitutionality  of  the  statute 
would  have  been  a  complete  answer  to  the  defence  set  up, 
and  as  neither  Bar  nor  Bench  suggested  its  invalidity,  we 
may  safely  conclude  that  no  tenable  objection  can  be  raised 
to  it. 

Alexander  Hamilton  maintained  that,  under  this  grant  of 
power,  Congress  may  pass  uniform  rules  respecting  marine 
insurances,  foreign  bills  of  exchange,  bottomry  bonds,  etc., 
which  he  urged  were  inseparable  concomitants  and  instru- 
ments of  commerce.  I  can  see  no  answer  to  his  reasoning, 
if  it  be  admitted  that  the  national  legislature  may  prescribe 
the  liability  of  shipowners  as  common  carriers.  That  a  uni- 
form s}rstem  of  rules  governing  these  mercantile  contracts 
would  be  a  boon  to  those  engaged  in  business,  there  can  be 
no  question. 

SECTION   IV. 

THE   POWER    TO    MAKE    RULES    FOR   NATURALIZATION. 

§  385.  Pursuing  the  order  of  the  separate  powers  enumer- 
ated in  Art.  I.  Sec.  VIII.,  we  are  next  to  consider  the  fol- 
lowing grant:  "Congress  shall  have  power  ....  to 
establish  an  uniform  rule  of  naturalization." 

From  the  very  outset  of  our  present  government,  as  a  free, 
orderly,  well-regulated  Republic,  avoiding  both  the  iron  rule 
of  an  unlimited  monarchy,  and  the  uncertainty  and  excesses 


THE  POWER   OF  NATURALIZATION.  249 

of  an  unrestrained  democracy,  it  was  foreseen  that  an  exten- 
sive emigration  from  the  Old  World  would  in  all  probability 
take  place ;  although  the  wildest  hopes  of  its  founders  could 
not  have  anticipated  a  tithe  of  the  actual  steady  and  increas- 
ing flow  of  European  producers  to  our  shores,  filling  up  our 
cities,  and,  in  one  generation,  causing  the  vast  West  to  be 
turned  into  an  expanse  of  cultivated  farm-land. 

Prior  to  the  Constitution,  each  state  regulated  the  intro- 
duction and  naturalization  of  aliens,  according  to  its  own  no- 
tions of  policy  ;  there  were  no  uniform  rules  ;  there  being 
no  national  citizenship,  there  was  no  place  for  any  power  or 
capacity  in  the  central  government  to  admit  persons  to  that 
status. 

§  386.  With  the  adoption  of  the  Constitution  all  this  was 
changed.  We  now  have  citizens  of  the  United  States  ;  and 
it  is  proper  that  the  legislature  of  the  nation  should  prescribe 
the  methods  by  which  those  who  are  not  naturally  so,  — so  by 
birth,  —  may  be  clothed  with  the  qualities  and  capacities  of 
citizenship.  And,  moreover,  it  is  of  the  highest  importance 
that  these  modes  should  be  uniform,  —  the  same  in  all  sec- 
tions of  the  country ;  otherwise  one  state  or  region  might 
obtain  great  and  unfair  advantages  over  another  by  induce- 
ments held  out  to  foreigners  in  easier  measures  of  naturaliza- 
tion  and  shorter  times  of  probation. 

Naturalization  is,  in  fact,  the  conferring  the  status  of  citizen- 
ship upon  those  who  do  not  acquire  that  status  by  their  birth. 
According  to  the  Common  Law,  all  free  persons,  born  within 
the  limits  of  the  country,  are,  with  some  unimportant  excep- 
tions, citizens.  Immigrating  to  a  country,  and  residing  therein 
permanently,  did  not,  at  the  Common  Law,  destroy  the  inca- 
pacities of  alienage,  and  change  a  person  from  an  alien  into  a 
citizen.  Naturalization  alone  works  this  change  ;  it  makes  a 
person  "natural";  leaves  him,  when  the  transformation  is 
wrought,  as  though  he~  were  a  citizen  by  nature.  It  was  for 
these  reasons  that  the  Constitution  conferred  upon  Congress 
the  authority  to  establish  rules  of  naturalization,  which  must, 
lowever,  be  uniform. 

§  387.   The  first  question  to  be  considered  is,  whether  this 


250  THE   POWER   IS   EXCLUSIVE. 

power  is  absolutely  exclusive  in  the  United  States,  or  whethej 
it  is  enjoyed  by  the  states  concurrently.  As  was  stated  in 
Section  III.  of  this  chapter,  there  may  be  three  alternatives, 
and  these  exhaust  all  possible  cases.  (I.)  A  power  may  be 
exclusively  vested  in  Congress  by  the  very  terms  of  the  grant, 
so  that  the  states  have  no  authority  to  pass  laws  touching  the 
subject-matter,  whether  Congress  has  acted  or  not  ;  or  (2) 
the  power  may  become  exclusive  by  Congress  acting  there- 
under; so  that  the  states  are  forbidden  to  legislate  after  Con- 
gress has  legislated  :  although,  while  the  latter  body  continues 
silent,  the  states  may  respectively  act ;  or  (3)  the  power  may 
be  so  concurrent  that  the  states  may  exercise  it,  though  the 
national  legislature  has  also  proceeded  under  the  grant  made 
to  it  in  the  Constitution. 

It  is  plain  that  the  power  in  question  falls  under  the  first  of 
these  alternatives;  that  it  is  exclusive  in  Congress;  that 
states  can  pass  no  naturalization  laws  even  if  Congress  should 
fail  to  exercise  its  function.  The  nature  of  the  power  points 
to  this  conclusion  ;  it  is  national  in  its  very  essence  ;  it  is  a 
matter  with  which  the  states  can  have  no  concern  ;  United 
States  citizenship  is  as  much  beyond  their  control  as  British  or 
French  citizenship. 

§  388.  The  decisions  of  the  Supreme  Court  have  established 
this  doctrine  ;  and  the  people,  the  political  parties,  the  theor- 
ists, and  the  state  legislatures  have  so  far  acquiesced,  that  no 
attempt  has  been  made  to  alter  or  even  question  the  construc- 
tion. It  is  true  that,  soon  after  the  adoption  of  the  Constitu- 
tion, the  Supreme  Court  did  not  speak  in  so  national  a  man- 
ner. In  1792  the  case  of  Collet  v.  Collet :  was  decided, 
which  drew  in  question  the  citizenship  of  a  person  naturalized 
under  a  Pennsylvania  statute  passed  before  the  adoption  of  the 
Constitution.  The  court  in  a  hasty  manner  expressed  an 
opinion  that  the  power  to  naturalize  was  concurrent ;  but 
they  overlooked  the  fact  that  this  law  was  enacted  during  the 
Confederation.  Subsequently  (1797),  in  the  case  of  United 
States  v.  Villate,2  the  court  decided  this  same  Pennsylvania 
statute  to  be  obsolete  and  void,  and  a  person  naturalized  under 
1  2  Dallas's  R.  294.  2  Ibid.  370. 


THE  POWER    OF  NATURALIZATION  251 

it  not  a  citizen  ;  but  they  did  not  consider  the  general  que* 
tion  whether  states  might  now  pass  such  laws.  In  Chirac 
v.  Chirac,1  it  was  finally  and  definitely  held  that  the  power  tft 
naturalize  is  exclusively  in  Congress. 

§  389.  In  the  case  of  Houston  v.  Moore,2  Mr.  Justice  Story 
laid  down  general  rules  which  are  often  quoted,  but  which,  in 
fact,  afford  little  aid  in  determining  whether  a  particular  legis- 
lative power  be  exclusive  ur  concurrent.  He  says  :  "  It  is 
not  to  be  admitted  that  a  mere  grant  of  powers  in  affirmative 
terms  to  Congress,  does  per  se  transfer  an  exclusive  sover- 
eignty on  such  subjects  to  the  latter.  On  the  contrary,  a 
reasonable  interpretation  of  that  instrument  necessarily  leads 
to  the  conclusion  that  the  powers  so  granted  are  never  exclu- 
sive of  similar  powers  existing  in  the  states,  unless  (1)  where 
the  Constitution  has  expressly  in  terms  given  an  exclusive 
power  to  Congress  ;  or  (2)  where  the  exercise  of  a  like  power 
is  prohibited  to  the  states ;  or  (3)  where  there  is  a  direct  re- 
pugnancy or  incompatibility  in  the  exercise  of  it  by  the  states. 
The  example  of  the  first  class  is  to  be  found  in  the  exclusive 
legislation  delegated  to  Congress  over  places  purchased  by  the 
consent  of  the  legislature  of  the  state  in  which  the  same  shall 
be,  for  forts,  arsenals,  dockyards,  etc. ;  of  the  second  class,  the 
prohibition  of  a  state  to  coin  money,  or  emit  bills  of  credit;  of 
the  third  class,  as  this  court  has  already  held,  the  power  to 
establish  an  uniform  rule  of  naturalization,  and  the  delegation 
of  admiraltv  and  maritime  jurisdiction."  In  the  great  case  of 
Oeden  v.  Saunders,3  Mr.  Justice  Johnson  remarks :  "  Our 
foreign  intercourse  being  exclusively  committed  to  the  general 
government,  it  is  peculiarly  their  province  to  determine  who 
are  entitled  to  the  privileges  of  American  citizens  and  the  pro- 
tection of  the  American  Government." 

§  390.  While  it  is  settled,  then,  upon  principle,  authority, 
and  continuous  practice,  that  the  Congress  of  the  United 
States  has  exclusive  authority  to  make  rules  for  naturalization, 
it  must  not  be  understood  that  the  states  are  deprived  of  all 
jurisdiction  to  legislate  respecting  the  rights  and  duties  of 
iliens.  They  may  permit  or  forbid  persons  of  alien  birth  tc 
1  2  Wheaton's  E.  259.  2  5  ibid.  49.  3  12  Ibid.  277. 


252  THE  POWER   OVER  BANKRUPTCIES. 

hold,  acquire,  or  transmit  property  ;  to  vote  at  state  or  na- 
tional elections,  etc.  These  capacities  do  not  belong  to  United 
States  citizenship  as  such.  Congress  would  transgress  its 
powers  were  it  to  assume  to  make  rules  upon  these  subjects. 
Citizenship  of  the  United  States  implies  and  carries  with  it 
protection  at  home  and  abroad,  as  will  be  more  particularly 
shown  in  a  subsequent  chapter. 

The  power  to  pass  rules  for  naturalization  has  been  ex- 
erted by  Congress  from  the  earliest  period  of  its  existence ; 
but  of  the  nature  and  provisions  of  the  several  statutes  from 
time  to  time  passed  by  that  body,  we  are  not  called  upon  to 
speak. 

SECTION  V. 

THE    POWER    TO    ENACT    BANKRUPT   LAWS. 

§  391.  The  next  grant  of  power  is  made  in  the  following 
language  :  "  Congress  shall  have  power  to  establish  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United 
States." 

In  considering  this  subject  there  are,  as  in  so  many  other 
instances,  two  general  questions  to  be  examined,  namely  :  (1.) 
The  nature  of  the  power,  or,  how  far,  if  at  all,  may  the  sev- 
eral states  exercise  it ;  and  (2)  its  extent,  or  what  laws  may 
Congress  pass  by  virtue  thereof. 

I.   The  Nature  of  the  Power  ;  is  it  exclusively  in  Congress,  or  held 
also  by  the  Stales  ? 

§  892.  The  question  thus  proposed  has  been  so  unmistak- 
ably answered  by  the  Supreme  Court ;  and  the  decisions  of 
that  tribunal  have  stood  so  unquestioned  by  the  partisans  of 
every  theory  of  constitutional  interpretation  ;  and  the  practice 
of  the  states  in  accordance  with  these  judgments  has  been  so 
uniform,  that  I  only  need  refer  to  the  cases  in  which  the  rule 
is  established,  without  entering  into  any  extended  statement 
of  the  reasoning  upon  which  it  is  founded. 

The  first  and  leading  case  was  Sturges  v.  Crowningshield  ] 
(1819).  This  case  drew  in  question  an  act  of  the  New  York 
1  4  Wheaton's  R.  122. 


THE   POWER   OVER  BANKRUPTCIES.  253 

legislature  passed  in  1811,  which  had  the  effect,  under  certain 
circumstances,  to  discharge  a  debtor  from  his  debts.  The 
contention  was,  that  this  statute  violated  the  Constitution  in 
two  particulars  :  (1)  because  a  state  has  no  power  to  pass  bank- 
rupt laws;  and  (2)  because  it  impaired  the  obligation  of  con- 
tracts. The  court  passed  upon  both  these  objections ;  but  we 
have  now  occasion  to  refer  only  to  the  first.  It  appeared  that 
there  was  no  bankrupt  law  of  Congress  in  operation,  although 
at  a  former  time  there  had  been  such  a  statute  in  existence. 
C.  J.  Marshall  delivered  the  opinion,  in  which  he  said:1 
"  The  principle  laid  down  by  the  counsel  for  the  plaintiff  is 
undoubtedly  correct.  Whenever  the  terms  in  which  a  power 
is  granted  to  Congress,  or  the  nature  of  the  power,  require  that 
it  should  be  exercised  exclusively  by  Congress,  the  subject  is 
as  completely  taken  from  the  state  legislatures  as  if  they  had 
been  expressly  forbidden  to  act  upon  it.  Is  the  power  to  estab- 
lish uniform  laws  on  the  subject  of  bankruptcies  throughout 
the  United  States  of  this  description  ?  "  The  Chief  Justice 
then  proceeded  to  answer  this  question,  and  came  to  the  con- 
clusion that  states  may  enact  such  laws,  provided  there  be  no 
existing  national  legislation  on  the  same  subject.  He  then 
proceeded  :  2  "It  has  been  said  that  Congress  has  exercised  this 
power  ;  and  by  doing  so  has  extinguished  the  power  of  the 
states,  which  cannot  be  revived  by  repealing  the  law  of  Con- 
gress. We  do  not  think  so.  If  the  right  of  the  states  to  pass 
a  bankrupt  law  is  not  taken  away  by  the  mere  grant  of  that 
power  to  Congress,  it  cannot  be  extinguished  ;  it  can  only  be 
suspended  by  the  enactment  of  a  general  bankrupt  law.  The 
repeal  of  that  law  cannot,  it  is  true,  confer  that  power  upon 
the  states  ;  but  it  removes  a  disability  to  its  exercise  which 
was  created  by  the  act  of  Congress."  From  this  opinion 
there  was  no  dissent. 

In  the  subsequent  case  of  Ogden  v.  Saunders,3  the  rule  laid 
down  in  Sturges  v.  Crowningshield  was  reaffirmed,  and  may 
now  be  considered  as  one  of  the  points  fully  established  in 
*ur  public  law.  The  construction  given  to  the  power  over 
oankruptcies,  is  identical  with  that  applied  to  the  regulation  of 
1  4  Wheaton's  R.  193.  2  ibid.  196.  3  12  Ibid.  213. 


254  EXTENT   OF   THE   POWER. 

commerce.  These  two  cases  were  remarkable  fur  the  learning 
and  ability  displayed  upon  the  question  how  far  state  bankrupt 
and  insolvent  laws  impair  the  obligation  of  contracts,  and  are 
therefore  obnoxious  to  a  prohibitory  clause  of  the  Constitution. 
They  will  be  referred  to  again  in  that  connection. 

II.   The  Extent  of  the  Power ;  or  what  Laws  may  Congress  pass  by 
Virtue  thereof? 

§  393.  It  should  be  carefully  noticed  that  the  Constitution 
employs  general  and  somewhat  peculiar  language.  It  does 
not  simply  say  that  Congress  shall  have  power  to  pass  uniform 
bankrupt  laws  ;  but  shall  have  power  to  pass  uniform  laws  on 
the  subject  of  bankruptcies.  What  are  bankruptcies  within  the 
meaning  of  this  phrase  ?  In  answering  this  question  we  are 
met,  as  at  almost  every  other  point,  by  the  two  schools  of  in- 
terpreters ;  the  one  giving  a  full,  liberal,  and  comprehensive 
meaning  to  languao-e  :  the  other  confining  it  to  a  strict  and 

CD  O  ©       *  O 

technical  sense,  construing  the  written  organic  law  as  though 
it  were  an  ordinary  statute,  and  thus  limiting  on  all  sides  the 
power  of  the  general  government.  The  former  system  of  in- 
terpretation has  prevailed  in  this,  as  in  most  other  instances : 
and  the  functions  of  Congress  are  held  to  be  commensurate 
with  the  wants  of  the  people.  It  is  to  be  regretted,  however, 
that  no  opportunity  has  yet  occurred  for  this  question  to  be 
fairly  presented  to  the  Supreme  Court  of  the  United  States  ; 
although  it  has  been  passed  upon  by  many  or  most  of  the  cir- 
cuit and  district  judges,  and  by  several  of  the  state  tribunals, 
with  a  general  uniformity  of  result.  We  must  be  content, 
therefore,  to  rest  our  conclusions  upon  the  decisions  of  these 
somewhat  inferior  courts,  and  upon  the  practice  of  the  legis- 
lature. Those  conclusions  are,  however,  abundantly  fortified 
by  the  general  maxims  and  principles  of  construction  adopted 
and  applied  by  the  supreme  constitutional  tribunal  in  giving 
effect  to  other  grants  of  power. 

§  394.  The  difficulty  lies  in  the  meaning  of  "  bankrupt," 
''  bankruptcies,"  and  "  bankrupt  laws,"  and  may  be  shortly 
3tated  thus  :    Do  "  bankrupt,"  "  bankruptcies,"  and  "  bank 


THE   POWER   OVER  BANKRUPTCIES.  255 

nipt  laws,"  as  mentioned  or  implied  in  the  Constitution,  refer 
to  and  include  the  cases  of  all  persons  who  are  unable  to  pay 
their  debts  in  full,  and  of  all  laws  which  provide  for  the  dis- 
tribution of  the  effects  of  such  persons  among  their  creditors  ; 
or  are  these  terms  restricted  to  those  persons  who  were  tech- 
nically known  as  "  bankrupts,"  and  to  those  laws  technically 
described  as  "  bankrupt  laws,"  in  the  statutory  legislation  of 
England,  which  had  been  in  existence  for  a  long  time  prior  to 
the  adoption  of  the  Constitution  ?  If  we  go  to  dictionaries 
and  to  general  literature,  we  shall  find  that  the  words  "  bank- 
rupt"  and  "bankruptcy,"  in  their  ordinary  acceptance,  apply 
to  all  persons  who  are  unable  to  pay  their  debts  in  full,  and 
are,  to  all  intents  and  purposes,  synonymous  with  "  insolvent  " 
and  "  insolvency."  If  we  go  to  the  English  statutes  which 
had  been  in  operation  for  several  generations,  and  which, 
with  some  modifications,  were  in  force  when  the  Constitution 
was  framed,  we  shall  find  that  the  word  "bankrupt"  was 
legally  defined  by  this  ancient  legislation  to  mean  only  a  mer- 
chant or  trader  who  had  committed  some  fraudulent  or  quasi- 
fraudulent  act  in  his  business;  and  the  word  "bankruptcy" 
to  mean  only  the  fraudulent  or  quasi-fraudulent  act  thus  done 
by  the  merchant  or  trader  ;  and  "  bankrupt  laws  "  to  have 
been  only  those  statutes  which  enabled  the  creditors  to  pro- 
ceed against  such  merchant  or  trader,  divest  him  of  his  prop- 
erty, and  distribute  the  same  ratably  in  part  payment  of  his 
debts. 

§  395.  Which  of  these  significations  is  to  be  given  to  the 
words  used  or  implied  in  the  Constitution  ?  "  Bankrupt " 
either  means  an  insolvent  or  failing  debtor,  —  a  person  unable 
to  pay  his  debts  in  full ;  and  "  bankruptcies  "  describes  the 
act  and  condition  of  insolvency,  and  the  proceedings  which 
may  be  had  thereon  ;  and  "  laws  on  the  subject  of  bankrupt- 
cies "  include  all  legislation  relating  to  such  insolvent  persons, 
uad  to  the  proceedings  in  consequence  of  the  insolvency  ;  or 
these  terms  are  restricted  to  their  technical  sense  in  the  ancient 
English  statutes  referred  to  ;  there  would  seem  to  be  no  mid- 
dle ground.  The  substantial  provisions  of  those  statutes  were 
is  follows :  When  a  merchant  or  trader  was  guilty  of  some 


256  EXTENT   OF   THE   POWER. 

specified  act,  which  was  fraudulent  or  quasi-fraudulent  in  its 

nature,  his  creditors  might  interfere,  procure  him  to  be  de- 
clared a  bankrupt,  his  property  to  be  transferred  to  trustees, 
and  by  them  distributed  in  part  satisfaction  of  his  debts. 
When  this  was  done,  he  might  be  discharged  from  all  further 
liability;  or  might  be  punished  by  imprisonment,  as  the  judge 
should  think  proper  from  the  circumstances  of  each  case.  It 
will  be  noticed  that  these  ancient  English  statutes  did  not  ap- 
ply to  farmers,  mechanics,  lawyers,  and  other  large  classes  of 
persons,  but  only  to  merchants  and  traders  ;  also,  that  no  op- 
portunity was  given  for  a  failing  debtor  to  proceed  voluntarily 
and  obtain  a  discharge  from  his  debts,  but  the  initiative  must 
be  made  by  his  creditors,  and  all  the  steps  were  in  invitum,  as 
it  were,  hostile  to  the  debtor.  It  is  true  that  the  English  sys- 
tem has  since  been  greatly  changed  in  both  these  respects  ; 
but  such  had  been  its  character  for  a  long  period  of  time,  and 
such,  with  some  modifications,  was  its  condition  when  the 
Constitution  was  adopted. 

§  396.  A  certain  school  of  interpreters  have  urged  that,  when 
the  framers  of  our  organic  law  employed  a  word  to  which  the 
English  law  had  given  a  definite  and  technical  meaning,  they 
are  to  be  taken  as  using  the  term  in  that  sense  alone,  and  that 
the  powers  conferred  are  to  be  restricted  to  such  as  flow  from 
this  special  signification  of  the  language.  They  apply  the  rule 
of  interpretation  thus  stated,  to  the  clause  relating  to  bankrupt- 
cies, to  that  conferring  admiralty  jurisdiction,  and  to  many 
others.  There  can  be  no  doubt  of  the  partial  truth  of  this 
principle.  All  interpreters  of  the  Constitution,  judicial  or 
legislative,  are  agreed,  that  the  technical,  legal  terms  used  in 
those  provisions  which  define  and  guard  the  general  rights  and 
liberties  of  the  citizen,  are  to  be  read  and  enforced  in  the  sense 
given  to  them  by  the  common  or  statutory  law  of  England, 
and  which  was  familiar  to  our  forefathers.  Among  such  terms 
may  be  mentioned  "trial  by  jury,"  "due  process  of  law," 
"  treason,"  "  habeas  corpus,"  "  bills  of  attainder,"  "  ex  post 
facto  laws,"  "  pardon,"  and  many  others.  But  to  extend  this 
rule  of  construction  to  all  grants  of  legislative,  judicial,  or  ex« 
scutive  power,  would  be  to  cripple  the  energies  of  the  people. 


•      THE  POWER   OVER   BANKRUPTCIES.  257 

to  dwarf  all  development  and  growth,  to  tie  up  the  hands  of 
the  government,  and  prevent  any  adaptation  of  measures  to 
changing  circumstances ;  in  short,  to  arrest  all  progress  and 
petrify  the  nation  in  the  form  and  condition  which  existed 
when  the  Constitution   was  framed. 

§  397.  The  restricted  meaning  of  the  provision  under  exam- 
ination has  not  been  adopted  either  by  Congress  or  by  the 
judiciary.  "Bankrupts"  describe  and  include  all  insolvent 
debtors  ;  and  "laws  on  the  subject  of  bankruptcies  "  are  those 
whose  principal  object  is  to  distribute  the  estates  of  such  in- 
solvents ratably  among  their  creditors.  Congress  has  full 
power  to  pass  such  laws,  subject  to  the  single  condition  that 
thev  shall  be  uniform  throughout  the  United  States.  Whether 
the  legislation  shall  apply  to  all  failing  debtors,  or  be  confined 
to  certain  classes,  such  as  merchants  and  traders  ;  whether  it 
shall  release  the  debtor  from  further  liability  or  not ;  whether 
it  shall  provide  for  a  voluntary  proceeding  on  his  part,  or  only 
permit  steps  to  be  taken  against  him  ;  whether  it  shall  affect 
past  indebtedness,  or  be  restricted  to  such  as  shall  be  incurred 
in  future  ;  —  all  these  are  mere  matters  of  policy,  to  be  adopt- 
ed or  rejected  by  Congress  according  to  its  views  of  expediency  ; 
they  are  not  at  all  involved  in  the  definition  or  extent  of  its 
power ;  none  of  them  are  necessary  to  the  proper  exercise  of 
its  jurisdiction. 

§  398.  In  the  year  1841,  Congress  passed  a  general  bank- 
rupt law  which  contained  two  separate  systems.  One,  the 
compulsory,  permitted  creditors  to  proceed  against  their  failing 
debtors  under  certain  specified  circumstances,  to  procure  them 
to  be  declared  bankrupts,  and  their  assets  distributed  pro  rata. 
The  other,  the  voluntary,  provided  means  for  failing  debtors 
themselves,  on  their  own  motion,  against  the  consent  of  credit- 
ors, to  be  declared  bankrupts,  to  have  their  estates  ratably  dis- 
tributed, and  themselves  discharged  from  all  further  liability  in 
respect  to  the  claims  against  them.  This  voluntary  system  was 
not  limited  to  merchants  and  traders,  but  extended  to  all  debt- 
ors, except  those  who  had  been  clothed  with  a  fiduciary  ca- 
pacity ;  nor  was  its  operation  restricted  to  debts  incurred  sub- 
sequent to  the  passage  of  the  act,  but  applied  to  all  those  con- 

17 


268  EXTENT   OF   THE   POWER. 

tracted  prior  thereto.  The  statute  gave  original  jurisdiction 
to  the  United  States  District  Courts  to  hear  and  determine 
applications  made  by  or  against  the  insolvent,  and  allowed  an 
appeal  therefrom  to  the  circuit  judges,  but  did  not  provide  for 
any  further  appeal  to  the  Supreme  Court.  The  present  bank- 
rupt law,  passed  in  the  year  1867,  resembles,  in  many  of  its 
general  features,  that  of  1841,  but  differs  greatly  from  the 
former  legislation  in   matters  of  detail. 

§  399.  A  vast  number  of  cases  arose  under  the  act  of  1841, 
and  were  passed  upon  by  the  district  and  circuit  judges  of  the 
United  States.  Objections  were  made  to  the  constitutionality 
of  the  statute,  on  the  ground  that  it  was  an  insolvent,  and  not 
a  bankrupt  law  ;  that  it  impaired  the  obligation  of  contracts  by 
discharging  debts  already  existing  ;  in  short,  that  Congress,  in 
its  passage,  had  transcended  their  powers.  The  same  questions 
also  came  before  several  of  the  state  courts  which  were  called 
upon,  in  private  suits  between  creditor  and  debtor,  to  decide 
as  to  the  validity  of  the  discharge  in  bankruptcy  set  up  as  a 
defence  by  the  latter.  As  has  been  already  stated,  the  law 
was  generally  sustained  in  all  its  parts.  It  is  sufficient  for  my 
purpose,  to  cite  a  single  case  from  each  of  these  classes ;  and 
I  make  the  selection,  because  in  each  the  whole  matter  was 
very  carefully  and  elaborately  examined  and  discussed  by  the 
respective  courts. 

§  400.  The  case  of  In  re  Klein  *  arose  in  a  United  States 
circuit  court,  and  was  decided  by  Mr.  Justice  Catron.  In 
the  coui'se  of  his  opinion  he  says  : 2  "  The  ideas  attached  to 
the  word  "  bankruptcies  "  in  this  connection  are  numerous 
and  complicated  ;  they  form  a  subject  of  extensive  and  com- 
plicated legislation  ;  of  this  subject  Congress  has  general  juris- 
diction ;  and  the  true  inquiry  is,  to  what  limits  is  that  juris- 
diction restricted  ?  I  hold  it  extends  to  all  cases  where  the 
law  causes  to  be  distributed  the  property  of  the  debtor  among 
his  creditors  ;  this  is  its  least  limit.  Its  greatest  is  a  discharge 
of  the  debtor  from  his  contracts.  And  all  intermediate  legis- 
lation, affecting  substance  and  form,  but  tending  to  further 
the  great  end  of  the  subject,  —  distribution  and  discharge 
»  1  Howard's  R.  277,  in  notis.  2  Ibid.  280. 


THE   POWER   OVER   BANKRUPTCIES.  25S 

are  in  the  competence  and  discretion  of  Congress.  With  the 
policy  of  the  law,  letting  in  all  classes,  others  as  well  as  trad- 
ers, and  permitting  the  bankrupt  to  come  in  voluntarily  and 
be  discharged  without  the  consent  of  his  creditors,  the  courts 
have  no  concern  ;  it  belongs  to  the  law-makers.'1 

§  401.  The  same  point  was  presented  and  similarly  decided 
in  Kunzler  v.  Kohaus,1  and  Sackett  v.  Andross.2  In  these 
cases  the  Supreme  Court  of  New  York  most  elaborately  con- 
sidered the  whole  subject,  and,  notwithstanding  a  vigorous 
and  somewhat  peremptory  dissent  from  Mr.  Justice  Bronson, 
held  that  "  bankruptcies  "  apply  to  all  persons  unable  to  pay 
their  debts ;  that  the  power  of  Congress  is  not  restrained  to 
any  particular  mode  of  discharge,  whether  voluntary  or  invol- 
untary ;  and  that  the  power  exists  to  relieve  the  insolvent 
from  debts  antecedent  as  well  as  those  subsequent  to  the  stat- 
ute. There  is  no  direct  restriction  upon  the  power  of  Con- 
gress to  pass  laws  impairing  the  obligation  of  contracts  ;  and 
it  was  considered  that  the  general  grant  of  power  to  pass  laws 
on  the  subject  of  bankruptcies,  ex  vi  termini,  includes  prior  as 
well  as  subsequent  liabilities  within  its  purview.  The  prohibi- 
tion upon  Congress  from  passing  ex  post  facto  laws,  refers,  as 
will  be  shown  hereafter,  to  criminal  offences  only.3 

§  402.  From  the  foregoing  statement  and  analysis,  it  ap- 
pears to  be  settled  by  judicial  decision  and  legislative  prac- 
tice, that  Congress  has  full  authority  to  pass  all  laws  relating 
to  the  distribution  of  the  estates,  and  discharge  of  the  liabilities, 
of  failing  debtors,  whether  we  technically  call  such  laws 
"  bankrupt  "  or  "  insolvent  "  ;  ,  that  it  may  provide  for  the 
compulsory  seizure  and  distribution  of  the  assets  at  the  in- 
stance of  creditors,  or  the  voluntary  proceeding  at  the  suit  of 
the  debtor ;  that  the  discharge  may  be  made  operative  upon 
debts  contracted  prior  as  well  as  subsequent  to  the  passage  of 
the  statute  ;  that  all  matters  of  detail,  such  as  whether  the 
operation  of  the  laws  shall  extend  to  all  insolvents,  or  be  con- 
fined to  particular  and  designated  classes,  are  me*e  questions 

1  5  Hill's  K  317.  2  Ibid.  327. 

3  See  also  McCormick  v.  Pickering,  4  Comstock's  K.  276  ;  Thompson  v. 
A.lger,  12  Metcalf's  R.  428. 


260  EXTENT   OE   THE   POWER 

of  policy,  to  be  settled  by  Congress,  and  not  questions  of  legis- 
lative jurisdiction,  to  be  determined  by  courts.  And  I  see  no 
reason  why  Congress  may  not  incorporate  provisions  looking 
to  the  punishment  of  fraudulent  or  extravagant  debtors,  by 
withholding  the  discharge  for  a  time,  or  even  by  imprisoning 
the  person  in  case  where  this  severity  is  warranted  by  the 
circumstances. 

§  403.  I  cannot  leave  this  subject  without  departing  some- 
what from  my  general  plan,  and  adding  a  remark  upon  the 
policy  of  legislation  under  the  grant  of  power  so  distinctly 
conferred,  and  the  expediency  of  a  national  system  of  bank- 
ruptcy. I  pass  by  the  consideration  of  the  relief  it  will  afford 
to  thousands  of  debtors  hopelessly  insolvent,  and  the  fresh  im- 
petus it  will  give  to  business  ;  because  this  topic  belongs  more 
especially  to  the  political  and  social  economist.  There  are 
other  reasons  which  seem  to  me  unanswerable,  which  apply  to 
all  times,  and  show  that  such  a  system  should  be  a  permanent 
part  of  the  national  legislation. 

§  404.  The  great  trade  and  commerce  of  the  country  now 
passes  beyond  the  limits  of  any  one  state  ;  it  is  in  a  meas- 
ure international ;  the  creditor  resides  in  one  state,  under 
one  municipal  law,  the  debtor  in  a  different  commonwealth 
which  is  governed  by  another  local  code.  The  diversities 
amono-  the  state  laws  which  regulate  the  collection  of  debts 
and  the  settlement  of  the  estates  of  insolvents,  whether  fraud- 
ulent or  simply  unfortunate,  are  almost  as  numerous  as  the 
states  themselves.  In  some,  preferential  assignments  are  per- 
mitted, in  others  forbidden  ;  in  some,  long  stays  upon  execu- 
tion are  allowed ;  in  some,  an  insolvent  may  be  discharged 
from  liability  with  the  consent  of  a  definite  portion  of  the 
creditors  ;  in  others,  without  the  consent  of  any  ;  in  others 
still,  not  without  the  consent  of  all.  Added  to  this  discrepancy, 
it  is  firmly  settled  by  the  Supreme  Court  of  the  United  States, 
that  an  insolvent's  discharge  under  a  state  law  has  no  extra- 
territorial effect ;  that  it  is  not  in  the  least  binding  upon  a 
creditor  residing  in  another  commonwealth  who  has  not  as- 
sented to  it,  although  he  may  have  been  notified  of  the  pro 
ceeding  and  made  a  party  thereto. 


THE   POWER   OVER   BANKRUPTCIES.  261 

§  405.  It  certainly  cannot  be  claimed  that  any  benefit 
arises  from  this  confusion  and  contradiction  ;  that  the  rights  of 
either  creditor  or  debtor  are  subserved  thereby.  Among  ab- 
solutely independent  and  sovereign  nations,  there  will,  of 
course,  be  more  or  less  diversity  of  municipal  laws  ;  and  per 
sons  engaged  in  foreign  trade  and  commerce  must  necessarily 
be  put  to  some  inconvenience.  But  even  among  independent 
nations  the  tendency  of  the  present  age  is  to  assimilate  their 
systems  of  commercial  and  mercantile  law.  Among  the  sev- 
eral states  of  the  Union,  this  diversity,  and  its  accompanying 
inconvenience,  need  not  exist.  The  Constitution  confers  upon 
Congress  full  power  virtually  to  ordain  one  set  of  rules  gov- 
erning the  relations  of  debtor  and  creditor  throughout  the 
whole  extent  of  the  country.  The  "  uniformity  "  permitted 
by  the  organic  law  would  render  a  discharge  in  one  state  bind- 
ing in  all  others  :  would  establish  the  same  acts  and  defaults 
of  the  debtor  as  occasions  for  bankrupt  proceedings  in  every 
section  ;  would  abolish  the  iniquitous  privilege  of  making  pref- 
erential assignments ;  would  enable  the  merchant  in  New 
York  or  Philadelphia  who  sells  on  credit  to  a  trader  in  Illinois 
or  Kentucky,  to  feel  certain  that  when  the  time  for  payment 
should  arrive,  his  debtor  would  not  have  failed  and  placed 
his  assets  completely  beyond  the  reach  of  the  deceived  and 
exasperated  creditor. 

§  406.  If  it  should  be  objected  that  this  legislation  will  oust 
the  states  of  their  jurisdiction,  and  render  much  of  their  law 
inoperative,  I  answer,  in  this  very  effect  consists  the  great 
benefit  of  a  national  system  of  uniform  laws  on  the  subject  of 
bankruptcies.  It  cannot  be  said  that  the  measures  of  Con- 
gress will  interfere  writh  any  rights  and  functions  reserved  to 
the  states ;  for  the  grant  of  power  to  establish  bankrupt  laws 
is  as  express  and  as  comprehensive  as  that  to  regulate  com- 
merce. All  the  reasons  which  led  the  convention  and  the 
people  to  confer  upon  Congress  a  supreme  authority  over 
foreign  and  inter-state  commerce,  all  the  arguments  which 
show  that  the  regulations  of  that  commerce  should  be  uni- 
form,  and  must,  therefore,  be  within  the  authority  of  the 
aational  legislature,  are  as  strong  and  convincing  when  applied 


262  EXTENT   OF  THE   POWER. 

to  the  subject  of  bankruptcies.  Indeed,  both  these  granta  of 
power  form  but  parts  of  a  general  scheme  by  which  uniformity 
in  the  laws  which  govern  trade  and  finance  throughout  the 
country  may  be  made  possible  ;  neither  was  intended  to  stand 
by  itself,  but  to  be  exercised  in  connection  with  all  the  others. 
This  uniformity  was  to  be  attained  by  giving  Congress  the 
power  to  regulate  commerce  and  establish  laws  respecting 
bankruptcies,  which  would  become  exclusive  by  its  exercise  ; 
by  enabling  it,  and  forbidding  the  states,  to  coin  money  ;  by 
inhibiting  the  states  from  laying  duties  on  imports,  and  requir- 
ing those  laid  by  Congress  to  be  the  same  in  all  parts  of  the 
Union  ;  and  finally,  by  cutting  off  the  power  of  the  stal 
emit  bills  of  credit,  and  to  pass  laws  impairing  the  obligation 
of  contracts.  Congress  has  executed  to  their  full  extent  some 
of  these  powers  ;  others  it  has  exercised  partially  :  it  is  only 
by  orivino-  complete  effect,  to  all,  that  the  original  idea  of  the 
Constitution  can  be  completely  carried  out. 

§  407.  I  am  confident  that  a  comprehensive  and  careful 
system  of  bankrupt  laws  will  do  more  to  put  the  trade  of  the 
country  upon  a  firm  basis,  to  abolish  untoward  and  hazardous 
speculation,  to  remove  the  opportunities  and  inducements  for 
fraud,  than  any  other  species  of  legislation  directly  affecting 
the  business  relations  of  the  people.  Make  the  statute  pro- 
spective only,  if  necessary  ;  leave  the  thousands  and  tens  of 
thousands  of  hopeless  debtors  still  weighed  down  by  the  load  of 
their  insolvency,  still  subject  to  the  demands  of  their  creditors, 
if  the  principles  or  prejudices  of  society  are  too  strongly  op- 
posed to  a  tabula  rasa;  but  not  one  argument  worthy  the 
name  can  be  brought  against  the  adoption  of  a  thorough  and 
stringent  system  that  shall  apply  to  all  future  liabilities  and 
transactions. 

SECTION  VI. 

THE    POWER    TO    COIN   MONEY. 

§  408.  Section  VIII.  of  Article  I.  proceeds  as  follows  in 
the  enumeration  of  specific  powers  :  "  Congress  shall  have 
power     ....     to  coin  money,  regulate  the  value  thereof, 


THE   POWEK   TO   COIN  MONEY.  263 

and  of  foreign  coin,  and  fix  the  standard  of  weights  and 
measures."  In  this  connection  should  be  read  a  part  of  Sec- 
tion X.  §  1,  "  No  state  shall  coin  money." 

It  is  7iot  necessary  to  dwell  upon  these  grants  and  restric- 
tions. The  whole  subject  of  coining  money  and  regulating 
its  value  is  placed  in  the  exclusive  control  of  Congress.  The 
reason  for  this  disposition  of  legislative  functions  is  apparent. 
If  the  great  elements  of  finance  and  trade  were  to  be  com- 
mitted to  the  national  authority,  with  the  design  that  the  reg- 
ulations governing  them  should  be  uniform  throughout  the 
United  States,  it  was  absolutely  necessary  that  the  medium  of 
exchange  —  the  current  coin  —  should  be  solely  in  the  hands 
of  the  general  government.  If  the  several  states  might  also 
issue  coin,  fix  its  standard  of  purity,  and  determine  its  value, 
all  uniformity  in  exchanges,  in  prices,  in  the  values  of  com- 
modities, would  at  once  be  lost,  and  the  business  of  the  coun- 
try would  be  thrown  into  hopeless  derangement.  We  are 
familiar  with  the  evil  results  flowing;  from  the  various  state 
banking  systems,  from  a  local  currency  possessing  different  de- 
grees of  credit,  even  when  there  is  a  common  standard  exist- 
ing in  the  national  coin.  But  if  this  standard  should  also  be 
lost,  the  evils  springing  from  the  conflicting  local  systems 
would  be  increased  in  a  tenfold   degree. 

§  409.  I  am  not  aware  that  any  question  requiring  judicial 
decision,  or  even  involving  a  conflict  of  interpretation,  has 
ever  arisen  upon  these  grants  of  power  ;  the  language  of  the 
Constitution  is  too  plain  to  admit  of  any  doubt.  The  authority 
of  Congress  to  issue  treasury  notes  and  make  them  legal  ten- 
der, was  not  rested  upon  their  exclusive  right  to  coin  money  ; 
if  it  had  been,  the  foundation  would  have  failed  at  the  slightest 
pressure.  No  amount  of  reasoning  could  show  that  executing 
a  promissory  note,  and  ordering  it  to  be  taken  in  payment  of 
uublic  and  private  debts,  is  a  species  of  coining  money. 

§  410.  While  the  power  to  coin  money  and  regulate  its 
value  was  thus  given  exclusively  to  Congress,  the  power  to 
fix  the  standard  of  weights  and  measures  was  left  in  the  hands 
Df  the  states  as  well  as  of  the  general  government.  As  long 
*s  this  power  remains  dormant  in  the  national  legislature,  the 


264  THE  POWER   OVER   THE   POSTAL   SERVICE. 

local  commonwealths  may  fully  exercise  it.  Although  the 
Btandard  of  weights  and  measures  is  connected  with  the  gen- 
eral subject  of  the  trade,  business,  and  commerce  of  the  coun- 
try, and  although  uniformity  in  this  standard  throughout  the 
Union  is  demanded  by  considerations  of  expediency,  yet  it  is 
evident  that  such  a  uniformity  is  by  no  means  as  essential  as  a 
common  standard  of  coined  money.  Without  the  latter,  busi- 
ness would  be  interrupted,  and  in  great  measure  destroyed  ; 
without  the  former,  some  inconveniences  have  been  and  are 
felt. 

Thus  far  Congress  has  not  assumed  to  fix,  in  any  authori- 
tative manner,  the  standard  of  weights  and  measures  ;  the 
legislation  of  the  states  has  not  been  interfered  with.  Even 
under  the  pressure  brought  to  bear  by  the  advocates  of  the 
decimal  system,  the  utmost  that  has  been  done  is  the  passage 
of  a  permissive  statute.  Should  the  national  legislature,  how- 
ever, change  its  policy,  and  fix  a  standard  for  the  whole 
country,  all  inconsistent  state  legislation  would  be  a  nullity. 


SECTION    VII. 

THE   POWER    OVER   THE    POSTAL    SERVICE. 

§  411.  This  power  is  granted  in  the  following  language : 
"  Congress  shall  have  powrer  ....  to  establish  post-offices 
and  post-roads."  No  other  constitutional  grant  seems  to  be 
clothed  in  words  which  so  poorly  express  its  object,  or  so  feebly 
indicate  the  particular  measures  which  may  be  adopted  to  carry 
out  its  design.  To  establish  post-offices  and  post-roads,  is  the 
form  of  the  grant ;  to  create  and  regulate  the  entire  postal  sys- 
tem of  the  country  is  the  evident  intent.  Congress  has  uniform- 
ly recognized  and  acted  upon  this  substantial  meaning,  rather 
than  upon  the  mere  form.  Under  this  clause  the  whole  postal 
department  has  been  organized,  with  its  vast  retinue  of  officers, 
from  its  head,  who  is  a  cabinet  member,  down  to  the  humblest 
postmaster.  Among  the  measures  adopted  and  universally 
acquiesced  in  as  contained  within  the  general  language,  may 
be  mentioned,  the  selection  of  towns  and  other  places  in  which 


THE   POWER   OVER   THE   POSTAL   SERVICE.  266 

offices  shall  be  situated  and  mails  received  and  delivered ;  the 
establishment  of  post-offices  in  those  towns,  including  often  the 
purchase,  or  erection^- as  well  as  the  hiring,  of  edifices;  the 
designating  0f  routes  over  which  mails  shall  be  carried  :  the 
entering  into  contracts  with  parties  for  the  transportation  of  the 
mails  ;  the  purchase  of  bags  for  holding  and  carrying  the  mail 
matter  ;  the  organizing  a  system  for  collecting  and  delivering 
letters  in  cities  and  large  towns  ;  the  fixing  rates  of  postage  ;  the 
manufacture  of  stamps  and  stamped  envelopes.  These  are  some 
of  the  particular  measures  which  have  been  considered  by  the 
legislature  as  fairly  coming  within  a  power  to  establish  post- 
offices  and  post-roads.  No  doubt  can  reasonably  exist  as  to 
the  correctness  of  this  legislative  construction ;  although  the 
judiciary  has  not  had  an  opportunity  to  pronounce  upon  the 
extent  of  the  authority  which  may  be  exercised  by  Congress. 

§  412.  In  times  preceding  our  own,  this  grant  of  power  gave 
rise  to  a  very  acrimonious  political  discussion,  which  somewhat 
divided  parties,  but  which  never  came  before  the  courts  for 
discussion.  The  dispute  arose  upon  the  meaning  of  the 
phrase  "  establish  post-roads."  One  party  contended  that 
Congress  could  only  point  out  existing  highways  as  routes 
over  which  the  mail  should  be  carried ;  the  other  claimed  that 
the  national  legislature  might  not  only  take  advantage  of  roads 
already  in  existence,  but  might  construct  others  should  it  be 
deemed  necessary.  Congress  did,  however,  in  some  instances, 
act  under  the  more  enlarged  view;  and  it  would  seem  that 
many  of  the  measures  which  have  been  adopted  without  a  sug- 
gestion of  their  invalidity,  involve  a  far  more  violent  strain 
upon  the  language,  than  the  single  one  of  constructing  or 
causing  to  be  constructed,  a  post-road.  In  later  times,  the 
dispute  lost  much  of  its  importance,  and  the  contest  finally 
ceased ;  as  private  enterprise  so  completely  occupied  the  field 
in  building  highways  for  travel  and  transport,  that  there  was 
no  occasion  for  the  general  government  to  act.  But  the  ques- 
tion which  for  awhile  was  in  abeyance,  has  arisen  again  in  our 
mvn  time,  under  new  circumstances,  and  a  new  form.  Congress 
has  been  called  upon,  and  has  responded  to  that  call,  to  aid  in 
Uie  construction  of  great  lines  of  railway,  so  great,  demanding 


266  PATENT   AND    COPYRIGHTS. 

bo  immense  an  outlay,  as  to  be  beyond  the  read)  of  private 
capital.  Chief  among  these  is  the  Pacific  Railway.  The 
power  of  the  legislature  to  assist  these  enterprises  has  been 
partly  rested  upon  the  authority  given  them  to  establish  post- 
roads.  The  whole  subject  is,  as  yet,  confined  to  the  legisla- 
tive department  ;  it  has  never  passed  into  the  domain  of  the 
courts.  It  is  probable  that,  like  so  many  other  matters  once 
doubtful  and  disputed,  this  class  of  measures  will  be  quietly 
acquiesced  in  by  the  people,  as  it  tends  to  promote  the  general 
welfare  ;  and  that  the  legislators  and  judges  will  be  guided 
by  the  opinion  of  tbat  great  constituency  which,  after  all,  im- 
poses its  decisions  upon  each  department  of  the  government. 

It  never  has  been  doubted  that  the  power  over  the  postal 
system  is  exclusively  within  the  control  of  Congress. 


SECTION   VIII. 

THE    POWER    TO     CREATE    AND     BESTOW    PATENT     RIGHTS    AND    COPY- 
RIGHTS. 

§  413.  The  next  legislative  power  is  given  in  these  words : 
"  Congress  shall  have  power  ....  to  promote  the  prog- 
ress of  science  and  the  useful  arts,  by  securing  for  limited 
times  to  authors  and  inventors  the  exclusive  right  to  their 
respective  writings  and  discoveries." 

It  is  not  necessary  to  dwell  at  any  length  upon  this  particu- 
lar grant ;  and  the  purposes  of  the  present  work  do  not  call 
for  any  explanation  of  the  legislation  thereunder.  The  power 
seems  to  have  been  tacitly  assumed  as  exclusive.  Certain  it 
is  that  the  full  and  minute  patent  and  copyright  laws  of  Con- 
gress have  completely  covered  the  ground  and  ousted  the  states 
of  any  jurisdiction  which,  perhaps,  they  otherwise  might  have 
had.  The  measures  which  maybe  adopted  will  involve  means 
for  ascertaining  and  declaring  the  priority  of  inventions  and 
writings,  and  for  enabling  the  inventors  and  authors  thus  as- 
certained to  have  the  exclusive  right  to  manufacture  and  vend 
their  products  at  any  place  within  the  United  States  for  a 
definite  term  of  years. 


THE   POWER   OVER   CRIMES.  267 

h  414.  No  state  has  attempted  to  pass  any  general  statute 
providing  for  the  same  classes  of  persons  ;  and  the  task  ot 
issuing  and  enforcing  patent  rights  for  inventions  and  copy- 
rights for  writings,  is  entirely  confined,  under  the  laws  of 
Congress,  to  the  national  executive  and  judiciary.  There  cai 
be  no  doubt  that  a  state  may  grant  a  special  reward  to  par- 
ticular inventors  or  authors,  if  it  were  deemed  expedient,  and 
thus  promote  the  progress  of  science  and  the  useful  arts  ;  but 
such  reward  could  not  take  the  shape  of  a  license  for  the  ex- 
clusive use,  manufacture,  or  sale  of  the  article.  Such  an 
enactment  would  directly  contravene  the  clause  of  the  Con- 
stitution we  are  considering,  and  the  legislation  of  Congress 
by  virtue  thereof.  The  means  of  promoting  science  and  the 
useful  arts  which  consists  in  bestowing  such  an  exclusive  right 
to  use,  manufacture,  and  vend  the  product,  is  given  to  Con- 
gress alone. 

SECTION  IX. 

THE   POWER    TO    DEFINE    AND    PUNISH    CRIMES. 

§  415.  I  collect  here  all  the  express  grants  of  power  to  legis- 
late on  the  subject  of  crimes.  In  Article  I.  Section  VIII.  are 
found  the  following :  "  Congress  shall  have  power  .... 
to  provide  for  the  punishment  of  counterfeiting  the  securities 
and  current  coin  of  the  United  States  ;  ....  to  define 
and  punish  piracies  and  felonies  committed  on  the  high  seas. 
and  offences  against  the  law  of  nations."  No  other  provision 
is  included  within  the  general  enumeration  of  legislative  func- 
tions contained  in  the  eighth  section  of  the  first  article.  But 
in  Article  III.,  which  principally  relates  to  the  judiciary,  there 
are  clauses  which  contain  express  grants  to,  or  limitations  upon, 
the  legislative  department.  These  are  as  follows  :  "  Treason 
against  the  United  States  shaH  consist  only  in  levying  war 
against  them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.  No  person  shall  be  convicted  of  treason,  unless 
on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
tonfession  in  open  court.  The  Congress  shall  have  power  tc 
ieclare  the  punishment  of  treason,  but  no  attainder  of  treason 


2(58  COUNTERFEITING    PUBLIC    SECURITIES. 

shall  work  corruption  of  blood  or  forfeiture,  except  during  the 

life  of  the  person  attainted."1  Also:  "  The  trial  of  all  crimes 
except  in  cases  of  impeachment,  shall  be  by  jury;  and  such 
trial  shall  be  held  in  the  state  where  the  said  crimes  shall  have 
been  committed;  but  when  not  committed  within  any  state, 
the  trial  shall  be  at  such  place  or  places  as  the  Congress  may 
by  law  have  directed."  2 

In  addition  to  these  several  direct  clauses  conferring  author- 
ity over  crimes,  there  are  many  other  cases  in  which  the  power 
to  legislate  upon  the  subject  is  plainly  implied  in,  is  confessedly 
a  consequence  of,  other  general  grants  which  primarily  relate 
to  a  different  subject-matter.  The  discussion,  therefore,  must 
be  separated  into  two  divisions:  (1.)  The  express  power  to 
define  and  punish  crimes  ;  and  (2)  the  implied  power  to  de- 
fine and  punish  crimes.  These  divisions  will  now  be  taken  up 
in  order. 

First.     TJte  Express  Power  to  Define  and  Punish  Crimes. 

§  416.  We  must  be  struck  at  the  outset  by  the  very  small 
number  of  these  express  grants,  and  by  the  restricted  and  pre- 
cise terms  in  which  the  legislative  powers  contained  therein 
are  conferred.  There  are  three  separate  provisions,  each  re- 
lating to  a  distinct  group  of  crimes  ;  the  offences  in  each  being 
indicated  by  a  generic  term,  or  by  the  highest  in  a  grade  of 
related  delicts.  These  provisions  cover  (1)  the  counterfeiting 
of  national  securities  and  current  coin  ;  (2)  piracies  and  felon- 
ies on  the  high  seas,  and  offences  against  the  law  of  nations ; 
(3)  treason  against  the  United  States. 

I.   Counterfeiting  the  Securities  and  Current  Coin  of  the  United  States 

§417.  The  "securities"  here  mentioned  might  be  so  ex- 
tended as  to  include  all  instruments  by  which  the  rights  and 
interests  of  the  general  government  are  secured.  But  the  con- 
text and  the  peculiar  language  used,  show  that  the  word  is  tf 

1  Const.  Art.  III.  Sec.  III. 

2  Ibid.  III.  Sec.  II.  §  3. 


THE   POWER   OVER   CRIMES.  269 

be  restricted  to  the  evidences  of  indebtedness  which  the  United 
States  may  have  issued  in  pursuance  of  its  power  to  borrow 
money.  The  power  to  coin  money  is  protected  in  one  por- 
tion of  the  clause,  and  the  affiliated  power  of  borrowing  money 
would  seem  to  be  intended  in  the  other.  The  bonds,  treasury 
notes,  certificates,  and  other  written  promises  ""ssued  by  the 
United  States,  would  naturally  circulate  from  hand  to  hand  as 
representatives  of  value  easily  convertible,  and  to  them  the 
term  "  counterfeiting  "  may  properly  apply.  The  "  current 
coin  of  the  United  States,"  plainly  refers  to  that  actually  made 
and  issued  by  the  government,  and  does  not  include,  as  we 
shall  see,  foreign  coin  in  circulation  whose  value  Congress  may 
have  regulated.  The  authority  to  punish  the  counterfeiting 
of  such  foreign  coin,  and  the  forging  of  instruments  which  are 
not  evidences  of  the  public  debt,  must  be  referred  to  some 
other  function  of  the  legislature. 

§  418.  The  express  grant  in  question,  then,  enables  Con- 
gress to  punish  the  crime  of  counterfeiting  the  evidences  of  the 
public  debt  which  are  included  under  the  name  "  securities," 
and  the  national  coin  made  and  circulated  by  authority  of  the 
general  government.  "  Counterfeiting "  is  a  generic  term, 
and,  under  the  familiar  principle  of  construction  that  a  grant 
of  the  greater  includes  the  less,  it  embraces  not  only  the  man- 
ufacture of  forged  coins  and  securities,  but  the  uttering  them 
when  made,  and  the  having  them  in  possession  with  the  intent 
to  utter  them.  Congress  may  therefore  pass  laws  determining 
each  of  these  three  grades  of  crime,  —  the  manufacture,  the 
putting  into  circulation,  and  the  having  in  possession  with  the 
intent  to  put  into  circulation  ;  and  may  affix  such  penalties 
and  punishments  to  each  offence  as  it  deems  expedient.  The 
trial  and  conviction  of  offenders  under  these  laws  belong,  as 
we  shall  see,  to  the  national  judiciary. 

§  419.  As  the  coined  metallic  currency  is  national,  com- 
pletely and  exclusively  within  the  control  of  Congress  ;  and 
as  borrowing  money  is  a  national  function  of  the  highest  con- 
sequence and  import,  *o  be  guarded  by  all  means  within  the 
power  of  the  government,  it  was  very  proper,  nay,  absolutely 
jecessary,  that  Congress  should  be  able  to  pass  laws  providing 


270  COUNTERFEITING   PUBLIC   SECURITIES. 

fur  the  punishment  of  counterfeiters,  and  for  the  consequent 
prevention  of  acts  which  would  render  these  attributes  of  coin- 
ing and  borrowing  absolutely  useless.  If  the  power  to  punish 
the  counterfeiters  of  these  national  representations  of  value 
had  been  left  entirely  to  the  states,  the  government  would 
have  been  without  protection  ;  any  antagonism  which  might 
arise  between  it  and  the  local  commonwealth  would  paralyze 
its  energies  and  reduce  its  laws  to  an  empty  form. 

§  420.  While  it  is  so  indispensable  to  the  orderly  working 
of  the  creneral  frovernment,  that  it  should  hold  the  authority  to 
punish  those  criminals  who  would  destroy  its  currency  and  its 
credit,  is  it  equally  necessary  that  the  power  should  be  exclu- 
sive ?  In  other  words,  may  the  states  also  exercise  this  func- 
tion, and  make  the  offenders  punishable  under  the  local  laws  ? 
We  have  seen  that  the  cases  of  exclusive  power  held  by  the 
United  States  maybe  reduced  to  three:  (1.)  Where  the  grant 
is  in  exclusive  terms  ;  (2.)  Where  the  states  are  expressly  pro- 
hibited ;  and  (3.)  Where  there  is  a  direct  repugnance  and 
incompatibility  in  the  exercise  of  it  by  the  states.1  The  ca- 
pacity to  punish  the  offences  in  question  does  not  fall  under  the 
first  or  second  of  these  classes  ;  does  it  under  the  third  ?  In 
respect  to  some  functions  of  the  government  it  is  impossible 
that  two  concurrent  jurisdictions  should  act  side  by  side  upon 
the  same  subject-matter.  Thus  in  regard  to  regulations  of 
commerce,  and  bankrupt  laws,  if  Congress  has  already  legis- 
lated, any  attempt  of  the  states  to  pass  laws  would  necessarily 
conflict  with  the  system  established  by  the  general  govern- 
ment. It  is  not  so  with  respect  to  the  function  we  are  now 
examining.  So  long  as  Congress  may  apportion  the  punish- 
ments, and  the  national  courts  may  try  and  condemn  the 
criminals,  there  is  no  interference  or  repugnancy  if  the  states 
also  declare  the  act  to  be  a  crime,  and  supplement  the  punish- 
ment by  a  second  penalty  inflicted  by  their  own  tribunals.  So 
long  as  the  general  government  is  left  free  to  act,  it  is  a  mat- 
ter which  only  concerns  the  state  and  the  offender,  whether 
he  shall  suffer  a  double  penalty  for  the  same  criminal  act. 

§  421.  The  question  came  directly  before  the  Supreme 
i  See  §388. 


THE   ROWER   OVER   CRIMES.  271 

Court  of  the  United  States  in  the  case  of  Fox  v.  The  State  of 
Ohio.1  The  prisoner  had  been  indicted,  tried,  and  convicted 
in  a  state  court  under  a  statute  of  Ohio,  for  passing  a  counter- 
feit coin  of  the  denomination  of  one  dollar  of  the  United  States. 
He  carried  the  case  to  the  Supreme  Court,  and  asked  that  the 
judgment  should  be  reversed  on  the  sole  ground  that  the  state 
statute  was  unconstitutional.  The  conviction  was  affirmed, 
the  court  substantially  adopting  the  views  stated  in  the  pre- 
ceding paragraph.  Although  the  criminal  act  in  this  case 
consisted  in  the  uttering  a  counterfeit  coin,  the  principles  in- 
volved in  the  decision  apply  to  forged  securities,  and  in  fact  to 
many  other  offences  against  the  United  States. 

II.  Piracies,   Felonies  committed  on  the   High   Seas,  and    Offences 
against  the  Law  of  Nations. 

§  422.  It  must  not  be  supposed  that  the  authority  of  the 
Congress  is  exhausted  when  it  has  acted  under  the  precise  and 
restricted  terms  of  this  clause.  We  are  not  to  consider,  in  the 
present  connection,  the  extent  of  the  power  to  legislate  on  the 
subject  of  crimes ;  but  we  are  to  interpret  this  particular  grant 
and  inquire  what  laws  may  be  passed  by  virtue  of  its  provisions 
alone. 

The  United  States  has  exclusive  control  of  the  foreign  rela- 
tions of  the  country  ;  it  alone  stands  as  an  independent  and 
sovereign  equal  in  the  family  of  nations  ;  the  states  have  not, 
in  fact,  any  foreign  relations.  As  this  capacity  and  function 
thus  inhere  in  the  one  body  politic,  its  government  is  respon- 
sible to  foreign  countries  for  all  breaches  of  international  law 
done  by  its  citizens.  Where  the  responsibility  rests  the  power 
should  reside.  Unless  the  government  held  the  authority  in 
its  own  hands  to  define  offences  against  the  law  of  nations,  and 
to  punish  the  offenders,  it  would  be  continually  involved  in 
controversies,  and  perhaps,  wars,  with  other  powers.  As 
other  states  know  it  only  in  their  intercourse,  reparation,  apol- 
ogy, security  for  the  future  would  be  demanded  of  it ;  and  if 
the  demand  could  not  be  answered,  reprisals  and  war  would 

oe  inevitable. 

i  5  Howard's  R.  410. 


272  PIRACY. 

§  428.  For  these  reasons,  to  maintain  a  condition  of  peace, 
to  do  justice  to  other  nations,  to  restrain  the  unlawful  proceed- 
ings of  its  own  citizens  and  inhabitants,  the  grant  of  power  to 
define  and  punish  offences  against  the  law  of  nations  was  not 
only  convenient  but  necessary.  The  grant  is  full  and  compre- 
hensive, and  any  measures  may  be  adopted  under  it  which  are 
demanded  by  the  exigencies  of  our  international  obligations. 
An  illustration  of  such  measures  is  found  in  the  "  neutrality 
laws,"  so  called,  which  forbid  the  fitting  out  and  equippi 
armed  vessels,  or  the  enlisting  of  troops,  for  either  of  two 
belligerents,  with  whom  the  United  States  is  at  peace;  and 
in  the  laws  which  prevent  the  organizing  within  the  country 
of  armed  expeditions  against  friendly  nations. 

§  42-1.  Piracy  is  a  word  having  a  twofold  legal  aspect.  It 
is  an  offence  against  the  international  law,  and  may  be  made 
also  an  offence  against  the  municipal  law.  So  far  as  piracy  is 
an  offence  known  to  the  law  of  nations,  it  is  an  universal  prin- 
ciple of  that  law,  that  every  state  has  jurisdiction  over  pirates, 
to  arrest  and  punish  them,  no  matter  of  what  countries  they 
are  natives  or  citizens,  and  no  matter  where  or  against  whom 
the  offence  was  committed.  The  theoretical  basis  of  this  com- 
mon jurisdiction  is,  that  pirates  have  no  nation  ;  their  crimes 
have  denationalized  them  ;  they  are  said  to  be,  not  in  a  figure, 
but  in  reality,  enemies  of  mankind,  hostes  gentium,  at  war 
with  the  whole  human  race.  These  principles  apply,  however, 
only  to  piracy  according  to  the  law  of  nations.  It  is  impor- 
tant to  inquire,  therefore,  What  does  the  International  Law 
declare  to  be  piracy,  and  whom  to  be  pirates  ? 

§  425.  A  late  French  writer  has  thus  graphically  described 
the  crime  and  the  criminals  : *  In  general,  pirates  are  those  who 
rove  the  seas,  under  no  national  authority,  but  only  under  their 
own,  to  commit  thereon  acts  of  depradation,  pillaging  by  main 
force,  either  in  time  of  peace  or  of  war,  the  ships  of  all  nations, 
without  making  any  other  distinction  than  that  which  their 
own  convenience  or  safety  may  suggest.  The  criminal  acts 
committed  by  such  desperadoes  constitute  the  crime  of  piracy. 
Pirates,  therefore,  on  the  seas,  resemble  organized  bands  of 
1  Ortolan,  Diplomatie  de  la  Mer,  Liv.  II.  Cb.  XI. 


THE   POWER   OVER   CRIMES.  273 

highwaymen  on  the  land  ;  only,  pirates  choosing  for  the  theatre 
of  their  crimes  a  neutral  sea,  a  place  common  to  all  mankind, 
and  attacking,  indiscriminately,  all  nations,  their  trade  is  even 
yet  more  dangerous  to  humanity. 

The  English  and  American  courts  have  had  frequent  occa- 
sion to  define  this  crime,  and  their  definitions  will  be  found 
more  condensed  and  precise  than  the  description  just  quoted 
from  the  French  writer.  Thus  in  England  it  has  been  de- 
clared that,  "  Piracy  *  is  an  assault  upon  vessels  navigated  on 
the  high  seas,  committed  animo  furandi,  whether  the  robbery 
or  forcible  depradation  be  effected  or  not,  or  whether  or  not  it 
be  accompanied  by  murder  or  personal  injury.  If  a  ship  be- 
longing to  an  independent  nation,  and  not  a  professed  bucca- 
nier,  practices  such  conduct  on  the  high  seas,  she  is  liable  to 
the  pains  and  penalties  of  piracy."  Several  cases  of  piracy 
came  before  the  Supreme  Court  at  an  early  day,  the  most  im- 
portant and  leading  of  which  was  The  United  States  v.  Smith.2 
In  their  judgment  the  court  observed :  "  There  is  scarcely  a 
writer  on  the  Law  of  Nations  who  does  not  allude  to  piracy  as 
a  crime  of  settled  and  determined  nature ;  and,  whatever  may 
be  the  diversity  of  definitions  in  other  respects,  all  writers  con- 
cur in  holding  that  robbery  or  forcible  depredations  upon  the 
sea  animo  furandi,  is  piracy." 

§  426.  The  United  States  has,  therefore,  full  power,  either 
under  the  clause  relating  expressly  to  piracies,  or  under  that 
referring  to  offences  against  the  law  of  nations,  to  provide 
for  punishing  the  crime  as  it  is  recognized  by  the  universal 
brotherhood  of  civilized  states.  Indeed,  the  case  of  United 
States  v.  Smith,2  decided  that  a  statute  of  Congress  provid- 
ing for  the  punishment  of  any  person  who  "  shall  commit 
the  crime  of  piracy  as  defined  by  the  law  of  nations,"  was 
a  valid  exercise  of  the  general  power  conferred  by  the  Con- 
stitution. 

§  427.  But  the  authority  of  the  legislature  extends  much 
farther.  Many  other  acts  done  on  the  sea,  which  do  not  fall 
within  the  definition  of  piracy  by  the  international  law,  may 
be  made  piracy  by  particular  statutes,  and  thus  brought  under 

1  1  Phillimore  on  Intern.  Law,  p.  379.         2  5  Wheaton's  K.  153. 
18 


274  CRIMES   ON   THE    HIGH    SEAS. 

the  operation  of  the  municipal  criminal  code.  It  is  for  this 
reason  that  Congress  is  enabled  not  only  to  punish,  but  to  dc- 
fine  piracies.  Thus  it  is  settled  by  publicists  and  by  courts 
that  the  slave  trade  is  not  piracy  according  to  the  law  of  na- 
tions. Ortolan  is  of  this  opinion.1  Lord  Stowell  thus  decided 
in  a  very  carefully  considered  case.2  The  Supreme  Court  of 
the  United  States  has  announced  the  same  doctrine.3  But  the 
United  States  may,  by  special  statute,  declare,  as  it.  Great 
Britain,  and  many  other  countries  have  declared,  the  slave 
trade  to  be  piracy,  and  may  apportion  such  punishments  as 
are  thought  expedient,  to  the  persons  engaged  in  the  nefarious 
traffic.  Again  ;  privateering  has  long  been  recognized  as  law- 
ful by  the  international  law;  but  Congress  may  certainly  enact 
laws  by  which  those  engaged  in  this  species  of  hostilities  shall, 
under  the  circumstances  described,  become  subject  to  the  pains 
and  penalties  of  piracy. 

§  428.  The  remaining  class  of  offences  embraced  within  this 
particular  grant  of  power,  are  felonies  committed  on  the  high 
seas.  As  Congress  may  exercise  an  exclusive  control  over  the 
foreign  commerce  of  the  country,  it  seems  not  only  proper  but 
necessary  that  the  general  government  should  have  jurisdiction 
over  crimes  committed  on  the  highway  of  that  commerce. 
The  power  of  the  legislature  over  this  subject  is  not,  however, 
confined  to  the  cases  mentioned  in  the  clause  under  considera- 
tion. The  grant  contained  in  Article  III.  Section  II.  which 
extends  the  judicial  power  of  the  United  States  to  all  cases  of 
admiralty  and  maritime  jurisdiction,  greatly  enlarges  the  func- 
tions of  Congress,  and  enables  it  to  define  and  punish  crimes 
committed  within  the  admiralty  jurisdiction,  although  not  upon 
the  high  seas.  There  has  been  much  dispute  as  to  the  extent 
of  the  admiralty  jurisdiction  recognized  by  the  Constitution. 
Some  have  asserted  that  it  is  confined  to  waters  in  which  the 
tide  ebbs  and  flows  without  the  territorial  limits  of  a  county; 
others  have  claimed  that  it  is  co-extensive  with  the  ebb  anq 
flow  of  the   tide  although  within  those  limits.     This  question 

1  Diplomatic  de  la  Mer,  Li  v.  1,  p.  213. 

2  The  Louis,  2  Dodson,  Adm.  R.  210. 
*  The  Antelope,  10  Wheaton's  R.  66. 


THE   POWER   OVER   CRIMES.  275 

will  be  more  particularly  examined  hereafter;  it  is  enough 
now  to  say,  that  the  Supreme  Court  lias  finally  and  authori- 
tatively settled  the  doctrine  that  the  admiralty  jurisdiction  ex- 
tends not  only  to  all  tide  waters,  but  also  to  the  great  inland 
lakes  and  navigable  rivers  which  are  tideless.3 

§  429.  The  criminal  legislation  of  Congress  in  respect  to 
offences  committed  upon  the  sea,  must,  therefore,  be  referred 
to  two  grants  of  power,  —  that  to  define  and  punish  felonies 
committed  on  the  high  seas ;  and  that  conferring  admiralty 
jurisdiction.  The  cases  which  have  been  decided  have  rather 
turned  upon  the  language  of  statutes,  than  upon  the  meaning 
and  force  of  the  constitutional  provisions.  It  may  be  con- 
sidered as  settled,  however,  that  the  "  high  seas  "  referred  to 
in  the  eighth  section  of  the  first  article,  include  only  those  tide 
waters  without  the  territorial  limits  of  the  country,  in  contra- 
distinction to  those  portions  of  the  sea  infra  fauces  terrce,  such 
as  tidal  rivers,  bays,  harbors,  and  the  like. 

In  1790  Congress  passed  a  crimes  act,  which  provided, 
among  other  things,  for  the  punishment  of  any  person  who 
shall  commit  murder  or  robbery,  "  upon  the  high  seas,  or  in  any 
river,  haven,  basin,  or  bay  out  of  the  jurisdiction  of  any  par- 
ticular state  ;  "  and  also  of  any  person  who  shall  "  commit 
manslaughter  upon  the  high  seas."  In  the  United  States  v. 
Wiltberger,2  a  case  arising  under  this  statute  came  before  the 
Supreme  Court.  The  defendant  was  indicted  for  a  manslaugh- 
ter committed  by  him  on  board  an  American  ship  while  lying 
in  the  river  Tigris,  in  China,  below  the  low  water  mark,  about 
thirty-five  miles  from  the  mouth,  but  where  the  tide  ebbed  and 
flowed.  The  court  held  that  the  offence  was  not  within  the 
language  of  the  statute,  because  the  place  of  its  commission 
was  not  upon  the  high  seas,  and  the  law  made  no  provision  for 
a  manslaughter  done  in  a  river,  haven,  basin,  or  bay.  Mr. 
Justice  Story  gave  the  same  definition  of  the  term  in  The 
United  States  v.  Grush,3  and  in  the  United  States  v.  Ross;4 
although  in  DeLovio  v.  Boit,6   while  speaking  of  the  extent  of 

i  The  Hine,  4  Wallace's  R.  555.  2  5  Wheaton's  R.  76. 

3  5  Mason's  R.  290.  4  l  GalliBon's  &  624. 

5  2  Gallison's  R.  398,  427,  428.     See  also,  United  States  v.  Bevans,  3 


276  TREASON. 

admiralty  jurisdiction,  he  included  a  roadstead  or  bay  within 
the  "  high  seas." 

§  430.  The  conclusion  would  seem  to  be,  that,  under  the 
authority  conferred  in  Article  I.  Section  VIII.,  Congress  may 
pass  statutes  which  define,  and  provide  for  the  punishment  of, 
felonies  committed  upon  the  tidal  waters  outside  the  territorial 
limits  of  any  country  ;  and  that,  under  the  judicial  power  over 
admiralty  matters,  in  connection  with  the  last  paragraph  of 
the  eighth  section  of  Article  I.,  Congress  may  pa<s  laws 
which  define,  and  provide  for  the  punishment  of,  offences  done 
on  tidal  waters  even  within  the  territorial  limits  of  a  country, 
so  far  as  the  criminal  jurisdiction  of  the  admiralty  extends. 

III.    Treason  against  the   United  States. 

§  431.  It  was  most  proper  that  Congress  should  be  clothed 
with  authority  to  declare  the  punishment  of  treason  ;  indeed, 
in  the  absence  of  any  express  provision  on  the  subject,  there 
could  be  no  doubt  of  the  power  of  the  government  to  define 
treason  and  punish  traitors.  As  the  people  of  the  United 
States  is  one  body  politic  possessing  inherent  sovereignty,  and 
as  the  Constitution  and  the  government  established  thereby,  is 
the  highest  expression  of  that  sovereignty,  it  could  not,  for  a 
moment,  be  admitted,  that  the  very  crime  of  all  crimes,  the 
crime  against  the  supremacy  and  life  of  the  nation,  should, 
under  any  circumstances,  go  unpunished.  The  provision  in 
the  Constitution  is,  therefore,  in  a  certain  sense,  superfluous  ; 
it  is  rather  a  limitation  upon,  than  a  grant  of,  governmental 
power. 

§  432.  I  do  not  propose  to  go  into  any  examination  of  the 
law  of  treason  ;  such  an  attempt  would  be  entirely  foreign  to 
the  objects  of  this  work.  The  constitutional  provision  defining 
the  crime  was  inserted  as  a  safeguard  of  the  rights  and  liberties 
of  the  citizen.  It  places  a  limit  beyond  which  neither  the 
legislature  nor  the  courts  can  pass.  It  was  borrowed  substan- 
tially from  an  ancient  statute  enacted  in  the  reign  of  Edward 

Wheaton's  R.  336  ;  United  States  v.  Furlong,  5  Wheaton's  R.  134  ;  United 
States  o.  Holmes,  5  Wheaton's  R.  412. 


THE  POWER   OVER   CRIMES.  277 

III.,  and  was  intended  to  destroy  forever  all  opportunity  fof 
legislative  or  judicial  extension  of  the  crime  so  as  to  cover  what 
are  known  as  constructive  treasons.  By  incorporating  thb 
definition  in  the  organic  law,  the  future  as  well  as  the  present 
is  secured,  and  the  liberties  of  the  people  are  preserved  from 
one  of  the  most  terrible  instruments  of  oppression  ever  wielded 
by  rulers  maddened  through  fear,  and  drunk  with  the  excess 
of  power. 

Treason  presupposes  allegiance,  which  is  due  from  citizens 
permanently,  and  from  all  others  temporarily  while  they  are 
within  the  territory  and  under  the  protection  of  the  laws. 
Aliens  may,  therefore,  under  the  conditions  mentioned,  be 
guilty  of  the  crime.  As  the  allegiance  is  owing  not  to  the 
rulers  personally  but  to  the  nation,  treason  is  an  offence  against 
the  United  States,  and  consists  of  acts  done,  in  violation  of  this 
allegiance,  against  its  integrity,  independence,  or  existence. 

§  433.  The  Constitution  mentions  two  classes  of  acts,  and 
two  only,  which  may  constitute  the  crime :  (1.)  Levying  war 
against  the  United  States;  and,  (2.)  Adhering  to  the  enemies 
of  the  United  States,  giving  them  aid  and  comfort.  As  the 
offence  is  so  aggravated,  and  its  consequences  so  terrible,  more 
than  ordinary  certainty  is  required  in  the  proof  necessary  to 
establish  guilt ;  two  witnesses  must  testify  to  the  same  overt 
act,  or  the  accused  must  confess  in  open  court.  These  provi- 
sions taken  together  require  an  overt,  or  open,  act  of  levying 
war,  or  an  open  act  of  adherence  to  the  nation's  enemies,  giv- 
ing them  aid  and  comfort ;  without  one  or  the  other  there  can 
be  no  treason.  No  mere  words  can,  therefore,  amount  to 
treason ;  no  mere  conspiring,  confederating,  planning,  can 
make  men  traitors ;  for  none  of  these  acts  are  overt.  The 
English  statute  adds  a  third  case,  —  compassing  the  death  of 
the  king  ;  and  this  element  of  the  crime  may  consist  in  simple 
conspiring  and  confederating.  But  it  is  not  treasonable  to 
compass  the  death  of  the  President,  or  even  to  accomplish  the 
iesign  and  take  his  life. 

§  434.  The  common  law  punishment  for  treason  was  death 
in  a  most  terrible  form  ;  the  offender  was  to  be  drawn  to  the 
gallows ;  hung  by  the  neck,  and  cut  down  alive  ;  his  bowels 
were  to  be  taken  out  while  he  was  alive,  and  burned  :  he  was 


278  TREASON. 

then  to  be  beheaded  and  his  body  quartered.  It  was  well  that 
Congress  should  have  express  power  to  fix  the  penalty,  and  to 
abandon  this  horrible  relic  of  a  barbarous  age.  The  power 
has  been  exercised  by  declaring  death  by  hanging  to  be  the 
punishment.  The  common  law  also  annexed  other  penalties 
to  the  crime  of  treason,  corruption  of  blood,  and  forfeiture  of 
the  estate  of  the  attainted  offender.  Corruption  of  blood  was 
the  destruction  of  all  inheritable  qualities  in  the  person  ;  so 
that  he  could  neither  succeed  as  heir  to  any  lands  which  might 
otherwise  have  come  to  him  by  descent,  nor  could  other  per- 
sons inherit  from  or  through  him.  As  the  source,  as  the  chan- 
nel, and  as  the  end  of  descent,  his  capacity  was  utterly  gone. 
Upon  conviction  he  also  forfeited  his  lands  from  the  time  when 
the  treasonable  act  was  committed,  and  his  goods  and  chattels 
from  the  time  of  the  conviction.  These  rules  of  the  law, 
visiting  severe  penalties  upon  the  innocent,  were  supposed  to 
have  a  strong  •  moral  effect  in  deterring  persons  from  crimes 
which  would  thus  bring  ruin  upon  their  families. 

§  435.  The  Constitution  has  abandoned  these  ideas  and  the 
rules  which  they  suggested.  No  attainder  of  treason  shall 
work  corruption  of  blood,  or  forfeiture,  except  during  the  life 
of  the  person  attainted.  The  "attainder"  here  spoken  of  is 
a  judicial  conviction  of  the  crime.  Bills  of  attainder  were 
known  to  the  English  law,  and  were  legislative  convictions  ; 
they  are  forbidden  by  express  provisions  of  the  Constitution, 
and  the  only  attainder  possible  in  the  United  States  is  a  judg- 
ment of  a  competent  court  ascertaining  and  declaring  the  guilt 
of  an  accused  person.  Corruption  of  blood  is  entirely  abolished  ; 
forfeiture  of  estate  is  permitted  to  a  very  limited  extent. 

How  far  Congress  may  provide  for  the  confiscation  of  private 
property  belonging  to  rebellious  citizens  with  whom  a  civil  war 
is  waged,  will  be  considered  in  subsequent  sections  which  treat 
■>f  the  military  functions  of  the  government. 

§  436.  While  treason  is  expressly  defined,  and  direct  power  is 
conferred  upon  the  legislature  to  declare  its  punishment,  it  must 
be  understood  that  the  mention  of  the  highest  crime  includes 
also  those  of  inferior  grades,  but  of  a  nature  kindred  to  treason. 
If  Congress    may    legislate    concerning    this   greatest    of   al] 


THE   POWEE   OVER   CRIMES.  279 

offences,  It  certainly  may  define  and  punish  those  which  re* 
semble  it  in  essence,  but  do  not  reach  its  height  of  enormity. 
Such  are  seditions,  conspiracies  to  overthrow  the  government, 
and  the  like,  in  which  there  is  no  overt  act,  and  which,  there- 
fore, do  not  amount  to  levying  war,  or  adhering  to  the  nation's 
enemies.  At  a  very  early  day,  (1790,)  Congress  assumed  to 
exercise  such  a  power,  by  defining  misprision  of  treason  to 
consist  in  the  having  knowledge  of  the  commission  of  treasons, 
and  the  concealing  the  same,  and  by  affixing  as  a  punishment, 
imprisonment  and  a  fine. 

Second.     TJie  Implied  Poivers  to  define  And  punish  Crimes. 

§  437.  In  addition  to  the  express  powers  bestowed  upon 
Congress,  to  define  and  punish  crimes,  which  we  have  seen, 
may  be  grouped  into  three  classes,  there  are  a  very  large  num- 
ber of  implied  powers.  These  all  exist  from  the  very  nature 
and  necessity  of  the  case.  They  are  results  and  applications 
of  the  general  principle  which  was  set  forth  and  illustrated  in 
Part  III.  Chapter  III.  Section  II.  They  are  measures  and 
means  which  conduce,  which  are,  in  fact,  often  absolutely 
necessary,  to  the  effective  exercise  of  the  legislative  function. 
A  sanction  is  an  essential  element  in  every  law ;  without  it  all 
the  imperative  qualities  of  a  law  would  be  lost  ;  the  statute 
would  cease  to  be  a  command  and  become  a  mere  request. 
Wherever  Congress  may  adopt  any  particular  measure,  may 
require  anything  to  be  done,  or  anything  to  be  foreborne,  in 
carrying  out  the  specific  grants  of  the  Constitution,  it  may 
declare  acts  of  disobedience,  or  acts  which  tend  to  interrupt 
the  accomplishment  of  the  proposed  design,  to  be  crimes,  and 
may  affix  such  punishments  as  it  deems  proper.  This  propo- 
sition seems  to  be  self-evident.  Without  the  capacity  most  of 
the  national  legislation  would  be  a  nullity.  Congress  has, 
therefore,  from  the  very  commencement  of  the  present  govern- 
ment, assumed  and  exercised  this  power  in  instances  too  many 
to  be  enumerated. 

§  438.  If  it  should  be  said  that  the  penal  legislation  neces- 
sary to  enforce  the  laws  of  the  United  States  might  be  left  to 


280  IMPLIED   POWER   OVER   CRIMES. 

the  slates,  the  answer  is  easy  and  conclusive.  Every  govern- 
ment which  is  supreme,  must  have  the  capacity  to  make  its 
own  commands  obeyed;  just  so  far  as  it  must  look  to  other 
bodies,  to  other  governments  for  help,  it  is  subordinate.  But 
the  United  States  is,  within  its  sphere,  absolutely  supreme  ; 
and  it  would  be  no  more  proper  for  it  to  appeal  to  the  several 
states  for  penal  legislation  in  its  behalf,  than  for  it  to  invoke 
the  assistance  of  Great  Britain  or  France.  But  in  addition, 
the  states  could  not  be  compelled  to  legislate  ;  their  action 
would  be  voluntary  ;  and  the  national  government  would, 
therefore,  be  entirely  at  their  mercy.  The  considerations  I 
have  stated  are  so  plainly  correct,  that  none  but  a  few  imprac- 
ticable theorists,  who  would  exalt  the  states  into  a  condition 
of  practical  supremacy,  have  ever  denied  the  authority  of 
Congress  to  define  and  punish  crimes  not  expressly  provided 
for  by  the  Constitution. 

§  439.  These  views  have  been  sustained  by  a  solemn  judg- 
ment of  the  Supreme  Court.  Congress  had  passed  a  statute 
making   the  bringing  of  counterfeit  foreign   coins  within   the 

©  ©      ©  © 

country,  with  the  intent  to  utter  the  same,  and  the  act  of  ut- 
tering such  coins,  crimes  to  be  punished  by  imprisonment.  It 
will  be  noticed  that  the  clause  of  Article  I.  Section  VIII.  giv- 
ing power  to  provide  for  the  punishment  of  counterfeiting  the 
current  coin'  of  the  United  States,  does  not  in  terms  cover  this 
case.  In  The  United  States  v.  Marigold,1  the  defendant  had 
been  indicted  under  the  law,  tried,  and  convicted;  and  the 
only  question  before  the  court  w^as  as  to  the  validity  of  the 
statute.  The  decision  sustained  the  validity  ;  and  was  rested 
upon  the  ground  that  such  a  law  was  one  of  the  necessary  and 
proper  means  for  carrying  out  the  power  to  coin  money,  and 
regulate  the  value  of  foreign  coin.  The  principle  involved  in 
the  case  evidently  applies  with  equal  force  to  all  the  penal  legis- 
.ation  of  Congress  in  aid  of  its  other  general  powers. 

§  440.  The  views  stated  in   §§  437  and  438,  are  also  sus- 
tained by  the  uninterrupted  practice  of  Congress.     The  statute 
book  is  crowded  with  enactments  defining  and  providing  for 
the  punishment  of  crimes,  which  are   not  alluded  to  in  the 
i  9  Howard's  R.  560. 


THE   MILITARY   AND   WAR  POWERS.  281 

setter  of  the  organic  law.  In  the  first  place,  may  be  mentioned 
the  provisions  which  secure  the  faithful  performance  of  official 
duties,  which  impose  penalties,  greater  or  less  in  extent,  upon 
acts  of  misconduct  in  office,  embezzlements,  and  frauds  of 
officers,  and  the  like.  In  every  department  of  the  civil  service, 
the  public  officers  are  restrained  by  criminal  legislation.  The 
power  to  regulate  commerce,  and  the  power  to  lay  and  collect 
taxes  require  penalties  of  fine  and  imprisonment  at  every  step. 
If  bonds  are  demanded  from  an  importer,  the  forging  such 
instruments  must  be  declared  a  crime  and  properly  punished. 
If  oaths  are  required  in  any  proceeding,  false  swearing  must 
be  prevented  by  a  suitable  sanction.  The  internal  revenue 
law  now  in  operation  describes  more  than  twenty-five  different 
acts  which  are  made  criminal,  and  to  which  a  punishment  by 
fine  or  imprisonment  is  affixed.  The  establishment  of  post- 
offices  and  post-roads  involves  legislation  respecting  the  crimes 
of  robbing  or  obstructing  the  mail.  The  system  of  national 
banks  is  guarded  by  numerous  statutory  provisions  which  tend 
to  preserve  the  integrity  of  the  currency  by  punishing  counter- 
feiters, and  the  good  faith  of  bank  officers,  by  punishing  their 
frauds,  embezzlements,  and  misapplications  of  money.  Ex- 
amples and  illustrations  might  be  multiplied ;  but  these  are 
enough  to  show  that  the  power  of  Congress  is  amply  sufficient 
to  meet  any  emergency ;  that  it  may  wield  all  the  sanctions 
•equired  to  procure  the  observance  of  its  laws. 


SECTION  X. 

THE    MILITARY   AND    WAR   POWERS. 

§  441.  We  now  arrive  at  that  most  important  group  of 
powers  which,  collectively,  may  be  termed  the  military  and 
war  powers.  They  are  conferred  in  the  following  clauses: 
'*  Congress  shall  have  power  ....  to  declare  war, 
grant  letters  of  marque  and  reprisal,  and  make  rules  concern- 
ing captures  on  land  and  water ;  to  raise  and  support  armies, 
but  no  appropriation  of  money  to  that  use  shall  be  for  a  longer 
term   than   two  years;  to  provide   and   maintain  a  navy;  to 


282  THE    POWER   TO   DECLARE   WAR. 

make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces;  to  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections,  and  repel  inva- 
sions;  to  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  he  em- 
ployed in  the  service  of  the  United  States,  reserving  to  the 
states  respectively  the  appointment  of  the  officers,  and  the 
authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  Congress." 

In  this  connection  should  be  read  the  prohibition  in  Sec- 
tion X.  of  the  same  Article,  as  follows  :  "  No  state  shall,  with- 
out the  consent  of  Congress,  .  .  .  keep  troops  or  ships  of 
war  in  time  of  peace,  ...  or  engage  in  war  unless  actu- 
ally invaded,  or  in  such  imminent  danger  as  will  not  admit  of 
delay." 

§  442.  It  will  be  seen  that  these  war  powers  are,  in  fact,  di- 
vided into  three  general  classes  or  groups :  (1.)  Those  which 
relate  to  the  inception  and  conduct  of  war  ;  (2.)  Those  which 
relate  to  the  raising,  maintaining,  equipping,  and  governing 
the  regular  land  and  naval  forces,  the  army  and  navy  proper  ; 
(3.)  Those  which  relate  to  the  employment  of  the  militia  in 
the  service  of  the  general  government. 

These  classes  will  be  considered  separately  and  in  their 
order. 

uu 

First.    The  Powers  which  relate  to  the  Inception  and  Conduct 

of  War. 

I.   Tlie  Power  to  Declare  War. 

§  443.  I  shall  enter  into  no  explanation  of  the  nature,  kinds, 
and  causes  of  war,  or  of  the  rules  wdiich  govern  its  conduct. 
These  are  subjects  which  belong  rather  to  the  international 
law,  and  are  fully  treated  in  works  upon  that  department  of 
jurisprudence.  It  is  sufficient  to  know  that  the  people  con- 
sidered the  act  and  state  of  war  a  matter  of  such  transcendent 
importance  and  magnitude,  involving  such  untold  personal 
and  material  interests,  hazarding  the  prosperity,  and  perhapi 


THE   MILITARY  AND    WAR  POWERS.  288 

„he  very  existence  of  the  bo-clv  politic,  that  they  committed  it* 
formal  inception  to  that  department  of  the  government  which 
more  immediately  represents  them,  —  the  Congress.  In  this 
they  differed  from  England,  and  most,  if  not  all,  other  mc 
narchical  nations,  constitutional  or  despotic,  in  which  the  power 
to  declare  war  is  held  by  the  Crown  ;  the  check  upon  its  ex- 
ercise in  England  being  the  authority  of  Parliament  alone  to 
raise  and  maintain  armies  and  navies, — the  control  of  the  purse. 

§  444.  The  commencement  of  a  state  of  hostilities  is  a  po- 
litical act,  within  the  province  of,  and  to  be  judged  by,  the 
political  departments.  We  shall,  therefore,  find  few  judicial 
decisions  throwing  light  upon  the  clause  under  consideration. 
One,  however,  of  the  highest  importance,  and  of  far-reaching 
effect,  will  be  cited  in  this  connection. 

Congress  has  power  to  declare  war :  Does  this  import  that 
there  can  be  no  state  of  proper  war  until  Congress  has,  by  a 
legislative  act,  asserted  it  to  exist  ?  If  a  foreign  nation  should 
make  war  against  us  during  a  recess  of  Congress,  are  the  hands 
of  the  government  tied  up  until  that  body  can  be  assembled  ? 
Were  this  so  we  should  be  at  the  mercy  of  every  powerful  and 
ambitious  nation.  It  has  not  been,  nor  can  it  be,  questioned, 
that  Congress  may  declare  a  state  of  war  to  exist,  which  had 
been  commenced  by  the  enemy  before  such  declaration,  and 
that  all  the  rights,  national  and  international,  of  belligerents 
will  thence  ensue.  Such  was  the  method  of  procedure  in  the 
war  with  Mexico. 

§  445.  But  it  has  been  claimed  that  a  declaration  of  this 
latter  sort,  at  least,  is  necessary  to  clothe  the  government  with 
belligerent  rights  ;  and  that  prior  thereto  the  only  power  of  the 
executive  is  a  defensive  one,  to  act  under  an  old  statute  of 
Congress  permitting  the  President  to  call  out  the  militia  in 
order  to  repel  invasions  or  suppress  insurrections. 

Before  referring  to  any  authorities,  it  is  proper  to  state  an- 
other most  important  constitutional  question  which  lias  been 
raised  by  the  events  of  the  past  few  years,  namely,  Whether 
the  national  government  can  wage  war  against  any  state  or- 
ganizations, or  against  any  combinations  of  citizens  ;  which 
deludes  the  question  whether,  under  the  Constitution,  a  re- 


284  CIVIL   WAR:   THE   PRIZE   CASES 

bellion  or  insurrection  against  the  national  authority  can  take 
on  the  character  of  proper  war,  so  as  to  confer  the  rights  of 
belligerents  upon  the  government,  as  against  the  rebels,  and 

against  neutrals,  and  subject  the  rebels  to  the  incapacities  and 
obligations  of  enemies. 

§  416.  I  do  not  purpose  to  enter  into  any  discussion  of  the 
question  whether  states  may  secede.  This  subject  was  suf- 
ficiently examined  in  Part  I.  I  will  content  myself  with 
stating  what  appears  to  me  a  dilemma  from  which  there  is  no 
escape.  If  states  have  no  constitutional  right  to  withdraw 
from  the  Union,  then  any  armed  opposition  to  the  government, 
whether  carried  on  by  irresponsible  combinations  of  men,  or 
by  the  aid  and  support  of  state  governments,  is  an  insurrection 
or  rebellion,  which  the  Constitution  in  terms  allows  to  be  sup- 
pressed by  military  force.  If  states  may,  under  the  Constitu- 
tion, secede,  they  become,  by  the  very  act  of  secession,  foreign 
nations,  against  whom  Congress  may  declare  and  carry  on 
war ;  for  the  organic  law  nowhere  prescribes  or  limits  the 
causes  for  which  hostilities  may  be  waged  against  a  foreign 
country.  The  causes  of  war  it  leaves  to  the  discretion  and 
judgment  of  the  legislature ;  and  there  probably  never  was  a 
war  concerning  which  it  might  not  be  urged  that  the  causes, 
on  the  one  side  or  the  other,  were  insignificant  or  unjust.  For 
this  reason  it  would  have  been  utterly  futile  to  have  restricted 
Congress  to  the  inception  and  waging  of  just  wars.  Herein 
seems  to  be  a  complete  answer  to  the  objections  raised  against 
the  authority  of  the  United  States  to  "  coerce  sovereign 
states." 

§  447.  Passing  from  this  inquiry,  which  is  political  and  in- 
ternational, rather  than  constitutional  and  municipal,  the  other 
points  suggested  above  have  been  definitively  settled  by  the  Su- 
preme Court  of  the  United  States  in  the  Prize  Cases  2  decided 
in  1863,  growing  out  of  the  late  hostilities.  The  cases  arose 
from  the  capture  of  several  vessels  attempting  to  violate  the 
blockade  of  Southern  ports.  Some  of  these  vessels  were  neutral, 
and  the  sole  question  as  to  them  was  whether  the  blockade 
was  lawful ;  others  were  owned  by  persons  residing  within  the 
1  2  Black's  R.  635. 


THE   MILITARY  AND   WAR  POWERS.  285 

Southern  states,  and  the  question  as  to  them  was,  whether  the 
owners  were,  by  the  mere  fact  of  such  residence,  public  ene- 
mies, so  that  their  property  would  be  confiscable  without  any 
examination  into  their  sentiments  for  or  against  the  govern- 
ment. Both  of  these  questions  depended  for  their  solution 
upon  a  more  general  one,  namely,  Whether  at  the  time  of  the 
capture  a  state  of  proper  war  existed. 

§  448.  It  will  be  remembered  that  upon  the  first  open  act 
of  hostilities,  the  taking  of  Fort  Sumter,  the  President  sum- 
moned 75,000  men  to  suppress  the  insurrection  or  rebellion, 
(April  15th,  1861 ;)  that  he  proclaimed  a  blockade  of  the 
Southern  ports,  and  stationed  men-of-war  to  make  such  block- 
ade effective,  (April  19th  and  27th,  1861.)  Congress  was 
also  called  to  meet  at  a  future  day  appointed.  They  did  so 
meet,  (July  4th,  1861;  )  and  immediately  passed  statutes  rec- 
ognizing the  state  of  hostilities,  and  maintaining  the  authority 
of  the  government.  In  the  interval  between  the  establishment 
of  the  blockade  and  the  passage  of  these  laws,  the  vessels  in 
question  were  captured  ;  they  were  libelled  in  the  District 
Courts  and  condemned  as  good  prize,  and  from  the  decrees  of 
condemnation  appeals  were  taken  to  the  Supreme  Court. 

§  449.  The  cases  fairly  presented  three  general  questions 
of  public  law  ;  and  upon  the  answers  would  depend  the  prac- 
tical inquiry  as  to  the  property  in  the  captured  vessels. 

First.  Can  the  government  coerce  the  states  assuming  to 
act  in  a  sovereign  capacity,  and  to  repudiate  the  authority  of 
the  nation  ?  This  was  not  openly  and  directly  argued  by  the 
counsel ;  it  was  rather  hinted  that  the  power  does  not  exist. 
Nor  did  the  court  in  terms  discuss  it;  the  affirmative  was, 
however,  necessarily  assumed  in  the  decision  which  was 
reached. 

Second.  Can  the  forcible  means  employed  by  the  govern- 
ment to  suppress  an  insurrection  or  rebellion  of  its  citizens 
ever  be  called  a  proper  war,  so  as  to  confer  belligerent  rights 
upon  the  nation,  and  belligerent  disabilities  and  incapacities 
upon  the  rebels  ?  and 

Third.  Assuming  the  affirmative  of  the  last,  can  these  forci- 
ble means  be  called  a  proper  war,  with  all  the  consequences  or* 


286  CIVIL   WAR:   THE   PRIZE   CASES. 

such  a  war,  before  Congress  has,  by  a  legislative  act,  declared 
such  state  of  war  to  exist  ? 

§  450.  The  negative  of  both  the  latter  questions  was  urged 
and  argued  with  great  fulness  by  the  counsel  who  opposed  the 
legality  of  the  captures,  although  the  force  of  the  argument 
was  expended  upon  the  last.  It  was  claimed  that,  until  Con- 
gress met  and  declared  war  to  exist,  the  only  power  under 
which  the  President  could  act  was  that  conferred  upon  him  by 
a  statute  passed  in  1795,  authorizing  him  to  call  out  the  militia 
to  repress  insurrections  and  rebellions  ;  that  as  Executive  he 
had  no  authority  in  the  matter,  his  only  capacity  being  to  exe- 
cute the  law  referred  to  ;  that  this  statute  gave  no  power  to 
use  other  belligerent  measures  than  those  indicated  by  its 
terms,  —  the  militia  force  ;  that  the  blockade  was  therefore  a 
nullity,  so  far  as  all  captures  made  before  the  legislative  ratifi- 
cation were  concerned. 

§  451.  The  court  was  compelled  to  meet  and  decide  all  these 
questions ;  and  decide  them  it  did,  in  the  affirmative.  The 
first,  as  I  have  already  said,  was  assumed ;  the  others,  (§  448,) 
were  definitively  passed  upon.  The  opinion  of  the  court  was 
delivered  by  Mr.  Justice  Grier,  and  I  quote  from  it  a  few 
pertinent  passages.  He  says : 1  "  Let  us  inquire,  whether,  at 
the  time  this  blockade  was  instituted,  a  state  of  war  existed 
which  would  justify  a  resort  to  these  means  of  subduing  a 
hostile  force.  War  has  been  well  defined  to  be  '  that  state  in 
which  a  nation  prosecutes  its  rights  by  force.'  The  parties 
belligerent  in  a  public  war  are  independent  nations.  But  it  is 
not  necessary  to  constitute  war,  that  both  parties  should  be 
acknowledged  as  independent  nations  or  sovereign  states.  A 
war  may  exist  where  one  of  the  belligerents  claims  sovereign 
rights  as  against  the  other.  Insurrection  against  a  government 
may  or  may  not  culminate  in  an  organized  rebellion  ;  but  a 
civil  war  always  begins  by  insurrection  against  the  lawful 
authority  of  the  government.  A  civil  war  is  never  solemnly 
declared  ;  it  becomes  such  by  its  accidents,  the  number,  power, 
and  organization  of  the  persons  who  originate  and  carry  it  on. 
When  the  party  in  rebellion  occupy  and  hold  in  a  hostile 
1  2  Black's  E.  666. 


THE   MILITARY   AND   WAR   POWERS.  287 

manner  a  certain  portion  of  territory  ;  have  declared  their 
independence;  have  cast  off  their  allegiance;  have  organized 
armies ;  have  commenced  hostilities  against  the  former  sov- 
ereign, the  world  acknowledges  them  as  belligerents,  and  the 
contest  as  war.  They  claim  to  be  in  arms  to  establish  their 
liberty  and  independence,  in  order  to  become  a  sovereign 
state  ;  while  the  sovereign  party  treats  them  as  insurgents  and 
rebels,  who  owe  allegiance,  and  who  should  be  punished  with 
death  for  their  treason."  "  As  1  a  civil  war  is  never  publicly 
proclaimed,  eo  nomine,  against  insurgents,  its  actual  existence 
is  a  fact, in  our  domestic  history,  which  the  court  is  bound  to 
notice  and  to  know." 

§  452.  Again  : 2  "  If  a  war  be  made  by  invasion  of  a  for- 
eign nation,  the  President  is  not  only  authorized,  but  bound  to 
resist  force  by  force.  He  does  not  initiate  the  war,  but  is 
bound  to  accept  the  challenge  without  waiting  for  any  special 
legislative  authority.  And  whether  the  hostile  party  be  a 
foreign  invader,  or  states  organized  in  rebellion,  it  is  none  the 
less  a  war,  although  the  declaration  of  it  be  unilateral.  Lord 
Stowell  observes : 3  'It  is  not  the  less  a  war  on  that  account, 
for  war  may  exist  without  a  declaration  on  either  side.  It  is 
so  laid  down  by  the  best  writers  on  the  law  of  nations.  A 
declaration  of  war  by  one  country  only,  is  not  a  mere  chal- 
lenge, to  be  accepted  or  refused  at  the  pleasure  of  the  other.'  " 
"  It 4  is  not  the  less  a  civil  war  with  belligerent  parties  in  hos- 
tile array,  because  it  may  be  called  an  insurrection  by  one  side, 
and  the  insurgents  considered  as  rebels  and  traitors.  It  is  not 
necessary  that  the  independence  of  the  revolted  province  or 
state  be  acknowledged,  in  order  to  constitute  it  a  party  bellig- 
erent in  a  war,  according  to  the  law  of  nations." 

§  453.  In  respect  to  the  powers  of  the  executive,  he  pro- 
ceeds : 6  "  The  President  was  bound  to  meet  it  in  the  shape  it 
presented  itself,  without  waiting  for  Congress  to  baptize  it  with 
a  name ;  and  no  name  given  to  it  by  him  or  them,  could 
change  the   fact."     "The6  law  of  nations   contains  no  such 

1  2  Black's  R.  667.  2  ibid.  668. 

8  1  Dodson's  Adin.  R.  247.  4  2  Black's  R.  669. 

5  Ibid,  669.  6  Ibid.  670. 


288  THE   DISPOSITION   OF   CAPTURES. 

anomalous  doctrine  as  that  which  this  court  arc  now,  for  the 
first  time,  desired  to  pronounce,  to  wit,  That  insurgents  who 
have  risen  in  rebellion  against  their  sovereign,  expelled  her 
courts,  established  a  revolutionary  government,  and  commenced 
hostilities,  are  not  enemies  because  they  are  traitors  ;  and  a 
war  levied  on  the  government  by  traitors,  in  order  to  dismem- 
ber and  destroy  it,  is  not  a  war  because  it  is  an  insurrection. 
Whether  the  President,  in  fulfilling  his  duties  in  suppressing 
an  insurrection,  has  met  with  such  armed  hostile  resistance, 
and  a  civil  war  of  such  alarming  proportions,  as  will  compel 
him  to  accord  to  them  the  character  of  belligerents,  is  a  ques- 
tion to  be  decided  by  him,  and  this  court  must  be  governed  by 
the  decisions  and  acts  of  the  political  department  of  the  gov- 
ernment to  which  this  power  was  intrusted.  He  must  deter- 
mine what  degree  of  force  the  crisis  demands.  The  proclama- 
tion of  blockade  is  itself  official  and  conclusive  evidence  to  the 
court  that  a  state  of  war  existed  which  demanded  and  author- 
ized a  recourse  to  such  a  measure,  under  the  circumstances 
peculiar  to  the  case." 

II.   The  Power  to  grant  Letters  of  Marque  and  Reprisal. 

§  454.  I  need  not  stop  to  comment  upon  this  clause.  It 
includes  the  power  to  provide  for  the  commission  of  privateers 
to  cruise  during  a  state  of  perfect  war ;  and  of  private  armed 
vessels  to  make  reprisals  upon  the  commerce  of  an  unfriendly 
nation,  during  a  condition  of  imperfect  war.  The  whole  sub- 
ject of  privateering  and  reprisals  belongs  to  the  international 
law. 

III.   The  Power  to  make  Rules  concerning   Captures  on  Land  and 

Water. 

§  455.  The  "  captures  "  here  spoken  of,  are  the  things  taken 
by  the  armed  forces  of  the  government,  and  not  the  very  act 
itself  of  taking.  The  word  is  used  in  both  senses.  We  speak 
of  the  capture  of  a  town,  district  of  territory,  ship,  fort,  army ; 
and  thereby  imply  the  fact  of  their  seizure.  The  clause  cannot 
admit  of  this  construction  ;  otherwise  a  very  large  part  of  the 


THE   MILITARY   AND   WAR   POWERS.  289 

disposition  and  management  of  the  land  and  naval  forces  would 
be  in  the  hands  of  Congress  ;  and  the  "  Commander-in-Chief" 
would  be  an  empty  titlts  with  little  or  no  power  except  to 
enforce  the  mandates  of  the  legislature.  The  policy  of  the 
Constitution  is  very  different.  It  was  felt  that  active  hostili- 
ties, under  the  control  of  a  lanxe  deliberative  bodv,  would  be 
feebly  carried  on,  with  uniform  disastrous  results.  All  history 
teaches  this  truth,  and  shows  that  the  army  and  navy  must  be 
wielded  by  a  single  will,  must  be  instruments  in  one  hand. 
The  Constitution  has  therefore  clothed  the  legislature  with 
power  to  originate  a  war  ;  to  furnish  the  requisite  supplies  of 
money  and  materials ;  to  authorize  the  raising  of  men  ;  and  to 
dispose  of  the  results.  All  this  is  a  complete  check  upon  the 
Executive  ;  for  Congress  may,  by  refusing  to  grant  supplies  or 
raise  forces,  drive  the  President  to  conclude  a  peace,  or  inau- 
gurate a  different  policy  in  the  conduct  of  actual  hostilities. 
But  all  direct  management  of  warlike  operations,  all  planning 
and  organizing  of  campaigns,  all  establishing  of  blockades,  all 
direction  of  marches,  sieges,  battles,  and  the  like,  are  as  much 
beyond  the  jurisdiction  of  the  legislature,  as  they  are  beyond 
that  of  any  assemblage  of  private  citizens.  The  only  possible 
authority  for  Congress  to  pass  measures  in  respect  to  the  actual 
conduct  of  hostilities,  is  found  in  the  last  paragraph  of  Section 
VIII.  Article  I.,  which  gives  them  power  "  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into  execu- 
tion ....  all  powers  vested  by  this  Constitution  in  the 
government  of  the  United  States,  or  in  any  department  or 
officer  thereof."  But  these  measures  must  be  supplementary 
to,  and  in  aid  of,  the  separate  and  independent  functions  of  the 
President  as  commander-in  chief;  they  cannot  interfere  with, 
much  less  limit,  his  discretion  in  the  exercise  of  those  func- 
tions. 

§  456.  Congress  may,  therefore,  make  rules  concerning  the 
disposition  of  all  things  taken,  seized,  captured  by  the  national 
forces  of  every  description.  And  this  includes  a  vast  array, 
both  in  number  and  magnitude,  of  special  objects  to  which  the 
legislative  power  may  be  directed.  Under  the  clause  in  ques- 
tion, Congress  can  pass  statutes  providing  for  the  disposition 
19 


290  CONFISCATION   IN   A   CIVIL   WAR. 

of  enemies'  or  neutral  ships  and  goods  taken  at  sea,  whale  vio- 
lating belligerent  rights,  — the  entire  code  of  prize  regulations  , 
for  the  disposition  of  public  and  private  property  of  the  enemy 
taken  on  land;  for  the  disposition  of  the  persons  of  enemies 
taken  prisoners  ;  and,  doubtless,  for  the  disposition  of  enemies' 
territory  conquered  and  held  by  a  victorious  army,  except  sc 
far  as  this  power  may  be  controlled  by  the  higher  function  of 
treaty-making,  held  by  the  President  and  Senate. 

§  457.  The  same  capacity  exists  in  a  civil  war,  while  the 
hostilities  are  actually  raging  ;  although  the  Constitution  for- 
bids private  property  of  citizens  to  be  taken  for  public  use 
without  just  compensation  ;  and  provides  that  the  citizen  shall 
not  be  deprived  of  life,  liberty,  or  property  without  due  process 
of  law  ;  and  thus  prohibits  legislative  confiscations,  and  all 
other  summary  proceedings  of  a  like  character.  Indeed,  there 
is  something  exquisitely  absurd  in  the  supposition  that  a  civil, 
any  more  than  a  public,  war  can  be  waged  under  the  protec- 
tion of  the  Bill  of  Rights.  This  point  was  definitively  settled 
in  the  Prize  Cases,1  just  cited,  with  reference  to  the  private  prop- 
erty of  a  resident  within  the  insurgent  territory,  taken  at  sea  ; 
and  I  see  no  possible  difference  between  that  case  and  the  case 
of  such  property  taken  on  land  during  the  prosecution  of  the 
war. 

§  458.  Mr.  Justice  Grier,  in  answering  the  argument  which 
opposed  the  treatment  of  the  Southern  citizen's  vessel  and  goods 
as  enemies'  property,  and  which  urged  that  the  ordinances  of 
secession  being  null  and  void,  the  Southern  people  were  still 
citizens  of  the  United  States,  and  as  such  entitled  to  the  im- 
munities and  privileges  established  by  the  Bill  of  Rights,  says 
rather  pithily  :  2  "  This  argument  rests  on  the  assumption  of  two 
propositions,  each  of  which  is  without  foundation.  It  assumes 
that  where  a  civil  war  exists,  the  party  belligerent  claiming  to 
be  sovereign,  cannot,  for  some  unknown  reason,  exercise  the 
rights  of  belligerents,  although  the  revolutionary  party  may. 
Being  sovereign  he  can  exercise  only  sovereign  rights  over  the 
other  party.  The  insurgent  may  be  killed  on  the  battle-field 
or  by  the  executioner ;  his  property  on  land  may  be  confiscated 
1  2  Black's  R.  635.  2  Ibid.  672. 


THE   MILITARY   A"NT    WAR   TOWERS.  201 

by  the  municipal  law  ;  but  the  commerce  on  the  ocean,  which 
supplies  the  rebels  with  means  to  support  the  war,  cannot  be 
made  the  subject  of  capture  by  the  laws  of  war,  because  it  is 
unconstitutional!!!"1  He  then  proceeds  to  rebut  these  as- 
sumptions and  to  repel  the  argument. 

In  fact,  those  who  maintain  the  views  opposed  to  this  case. 
are  inevitably  driven  to  the  position,  that  under  the  Constitu- 
tion of  the  United  States,  a  civil  war,  however  great,  is  no  war, 
but  only  an  aggravated  riot;  and  the  armies  and  navies  used 
in  suppressing  the  disturbance,  are  only  a  somewhat  excep- 
tional posse  comitatus,  called  out  to  aid  the  sheriff  in  his  civil 
duty  of  dispersing  the  unlawful  assemblages,  and  arresting  the 
offenders. 

§  459.  It  is  well  known  that  Congress,  during  the  late  civil 
war,  acted  under  the  construction  of  their  powers  which  I  have 
stated  and  advocated ;  and  passed  many  statutes  for  the  dispo- 
sition of  property  seized  on  land  by  the  armies,  in  particular  of 
cotton  and  slaves,  selling  the  one  and  liberating  the  other. 
They  also  provided  for  the  confiscation  of  enemies'  property 
by  civil  proceedings. 

How  far  measures  of  confiscation,  after  the  hostilities  have 
ended,  are  lawful,  is  an  entirely  different  question  ;  its  solution 
depends  upon  considerations  which  have  no  connection  with 
the  military  powers  of  Congress. 

Second.  The  Poivers  which  relate  to  the  Raising,  Maintain- 
ing. Equipping,  and  Governing  the  regular  Land  and  Naval 
Forces,  the  Army  and  Navy  proper. 

I.   The  Power  to  Raise  and  Support  the  Forces. 

§  460.  Congress  has  power  "  to  raise  and  support  armies," 
"  to  provide  and  maintain  a  navy,"  but  no  appropriation  for 
the  army  shall  be  for  a  longer  term  than  two  years.  It  will 
be  noticed  that  the  latter  restriction  does  not  apply  to  the  navy. 
The  army  nere  spoken  of  is  the  regular  standing  army,  in  con- 
tradistinction to  the  militia,  and  to  volunteer  organizations 
.hroughout  the  country. 

1  The  marks  of  emphasis  are  not  mine. 


29^2  RAISING  AND   SUPPORTING  THE  FORCES. 

These  provisions  in  the  Constitution  were  made  the  ground 
Df  a  most  violent  attack  upon  that  instrument  when  it  was 
before  the  people  for  adoption.  It  was  urged  with  great  vehe- 
mence that  a  standing  army  would  become  the  instrument,  in 
the  hands  of  the  President,  of  overthrowing  the  liberties  of  the 
people  ;  that  its  numbers,  at  all  events,  should  be  limited  ;  that 
a  navy  was  useless,  a  mere  means  of  expense  and  of  irritation. 
In  fact,  the  navy  remained  under  a  cloud  until  the  war  of 
1812  brought  it  into  favor.  The  futility  of  these  objections 
has  been  so  conclusively  shown  by  the  past  history  of  our 
country,  that  I  need  not  occupy  time  and  space  with  stating 
the  arguments  by  which  they  were  met.  These  arguments 
are  all  summed  up  in  the  fact  that  the  army  is  entirely  under 
the  control  of  the  direct  representatives  of  the  people  ;  and  to 
say  that  they  cannot  be  trusted,  is  to  say  that  the  people 
cannot  be  trusted,  and  that  all  republican  government  is  a 
failure. 

§  461.  Those  who  are  familiar  with  the  outlines  of  English 
history,  know  that  one  of  the  chief  matters  for  a  long  time  in 
dispute  between  the  Crown  and  the  Commons,  was  as  to  where 
the  jurisdiction  to  raise  and  maintain  armies  lay.  The  Com- 
mons claimed  that  it  rested  exclusively  with  Parliament  ;  the 
Crown  asserted  that  its  own  prerogative  enabled  it  to  raise 
forces  and  collect  money  for  their  support  by  divers  imposts 
and  duties.  The  controversy  was  finally  decided  in  favor  of 
the  Commons.  It  needs  no  argument,  at  this  day,  to  show 
that  in  any  nation  assuming  to  be  republican,  or  even  constitu- 
tional, there  can  be  no  liberty,  no  security,  no  certainty  that 
the  existing  constitution  of  things,  the  settled  public  order  and 
tranquillity,  will  remain,  unless  the  power  to  raise  and  support 
the  armed  forces  of  the  state  is  exclusively  confided  to  the 
popular  branch  of  the  government.  This  has  passed  into  an 
axiom  of  the  public  law.  The  power  of  the  purse  is  yet 
stronger  than  the  power  of  the  sword.  Armies  and  armed 
forces  are,  of  all  things,  the  most  expensive  ;  and  if  the  sup- 
plies be  withheld,  the  array  will  collapse.  Thus  the  Constitu- 
tion has  given  the  people,  through  their  direct  representatives, 
i  complete  check  upon  any  illegal  and  revolutionary  designs 


THE   MILITARY   AND   WAR   POWERS.  293 

of  the  Executive  ;  and  even  upon  his  ambitious  or  ill-consid- 
ered methods  of  carrying  on  a  war  that  had  been  authorized 
by  Congress. 

§  462.  But  the  Constitution  goes  farther  even  than  this,  far- 
ther than  the  organic  law  of  Great  Britain.  Parliament  has 
indeed  adopted  a  practice,  or  policy,  of  making  an  appropriation 
for  the  army,  and  authorizing  its  maintenance  for  only  one  year  ; 
renewing  annually  the  statute  by  virtue  of  which  the  army 
exists.  But  this  is  only  a  practice,  which  may  be  abandoned 
at  any  time.  Parliament  may,  if  it  choose,  pass  a  law  estab- 
lishing the  army  for  ten,  or  any  other  number  of  years,  and 
making  an  appropriation  for  its  support  during  all  that  time. 
This  Congress  cannot  do.  The  utmost  limit  to  which  they 
can  extend  their  action  in  the  way  of  support  and  maintenance, 
is  two  years.  If  they  should  withhold  the  supply,  every  officer 
and  every  private  must  go  without  his  pay,  clothing,  and 
rations.  The  probable  reason  for  adopting  this  limit  was,  that 
two  years  is  made  the  time  for  the  existence  of  each  Congress ; 
that  every  two  years  the  people  are  called  upon  to  elect  new 
representatives,  when  the  acts  of  their  late  delegates  will  be 
passed  in  review.  It  was  considered  that,  by  making  the  term 
of  office  two  years  in  length,  the  people  had  delegated  their 
entire  discretion  for  such  period  to  their  representatives,  re- 
taining the  power  to  mark  their  disapproval  of  any  measure 
by  rejecting  their  former  agents,  and  by  appointing  others  who 
will  carry  out  their  wishes. 

§  463.  What  laws  Congress  may  pass  by  virtue  of  this 
power,  has  not  been  illustrated  to  any  extent  by  judicial  de- 
cision ;  nor  is  there  room  for  much  doubt  or  question.  "  Rais- 
ing "  armies,  includes  the  determination  of  the  number  of  men 
who  shall  be  enlisted;  the  different  arms  of  the  service  into 
which  they  shall  be  •  separated ;  the  number  and  arrangement 
of  companies,  regiments,  brigades,  and  corps ;  the  number  and 
rank  of  officers  ;  the  time  of  service  of  men  and  officers,  and 
other  like  matters.  "  Providing '  a  navy,  includes  the  de- 
termination of  the  same  class  of  subjects  relating  to  seamen 
%nd  officers,  and  also  the  number,  size,  character,  and  cost  of 
ships  and  other  vessels   of  war ;  the  number,  size,  situation, 


294  RAISING   AND   SUPPORTING  THE  FORCES. 

and  cost  of  navy  and  dork  yards,  and  other  places  of  construc- 
tion. 

"Supporting"  an  army,  includes  not  only  the  provisions  for 

the  food,  clothing,  cost  of  transportation  of  men  and  officers, 
but  also  provision  for  their  warlike  equipment,  arms,  ammuni- 
tion, medical  attendance  ;  also  provision  for  their  and  the 
country's  defence  by  the  construction  and  maintenance  of  bar- 
racks, arsenals,  depots,  forts  and  all  other  fortifications,  both 
temporary  and  permanent . ;  in  short,  any  thing  that  can  make 
an  army  effective  for  offensive  or  defensive  purposes.  The 
same  is  time  in  reference  to  "maintaining"  a  navy. 

§  404.  In  accomplishing  these  direct  objects,  Congress  may 
adopt  all  measures  necessary  and  proper  for  effecting  the  re- 
quired purpose.  They  may  either  purchase  or  manufacture 
arms,  ammunition,  etc.  ;  they  have  done  both  ;  they  may 
educate  officers  in  military  science,  as  is  done  in  the  national 
military  school  at  West  Point,  and  the  naval  school  at  Annap- 
olis ;  they  have  organized  the  war  and  navy  departments, 
with  their  many  subordinate  bureaus ;  they  have  provided  for 
the  payment  of  bounties  in  money  and  land,  and  pensions  to 
soldiers  and  their  families.  It  is  claimed  by  many  statesmen, 
that  they  may  construct,  or  aid  in  the  construction  of  great 
highways,  or  railways,  as  means  for  the  ready  transport  of 
troops.  The  action  of  Congress  in  aid  of  the  Pacific  Railway, 
is  partly  supported  by  this  view  of  their  constitutional  power. 

§  465.  In  what  manner  Congress  shall  proceed  to  raise  men 
for  the  army  and  navy,  may  admit  of  some  question.  The 
common  practice,  under  ordinary  circumstances  is,  to  enlist 
them  for  a  definite  period  of  years,  as  they  shall  voluntarily 
apply.  This,  doubtless,  suffices  as  the  general  procedure. 
But  emergencies  may  arise,  and  have  arisen,  when  this  slow 
process  would  be  utterly  inadequate  to  the  exigencies  of  the 
times.  Then  the  government  may  call  for  volunteers  ;  and  as 
an  incentive,  offer  bounties,  and  permit  those  volunteering  to 
organize  themselves  into  regiments,  under  their  own  officers 
partly  or  wholly.  This  plan  was  adopted  in  the  Mexican  War. 
The  volunteers  then  called  out,  were  not  a  part  of  the  militia, 
for  they  were   required  to  depart  from   the  territory  of  the 


THE   MILITARY   AND   WAR   POWERS.  295 

United  States,  which  the  militia,  as  we  shall  see,  cannot  be 
compelled  to  do. 

§  466.  During  the  late  war,  the  general  government  seems 
to  have  acted  under  its  powers  of  raising  armies  and  of 
calling  out  the  militia  combined,  as,  beyond  a  question,  it 
might  do.  The  first  call  of  75,000  men  was  in  terms  made 
under  an  old  statute  of  Congress  permitting  the  President  to 
call  forth  the  militia  in  order  to  suppress  an  insurrection.  The 
subsequent  calls  for  volunteers  seem  to  have  been  made  under 
the  power  to  raise  armies  ;  for  the  men  were  enlisted  for  a  def- 
inite period,  three  years  or  until  the  end  of  the  war  ;  they  were 
often  added  to  existing  regiments ;  the  general  officers  were 
appointed  by  the  Executive.  Still  the  idea  of  militia  was  not 
entirely  abandoned  ;  regiments  were  organized  by  states,  quotas 
were  demanded  from  states,  state  governors  appointed  the 
regimental  officers.  There  can  be  no  doubt,  however,  that 
these  forces  were  organized  under  the  general  power  to  raise 
armies ;  that  they  formed  a  part  of  the  army  of  the  United 
States,  and  not  of  the  militia  in  active  service  ;  and  that  this 
procedure  on  the  part  of  the  government  was  entirely  consti- 
tutional. None  but  mere  verbal  theorists  and  critics  objected 
to  it,  although  such  objections  were  raised. 

Whether  Congress  may  resort  to  conscription  as  a  means  of 
filling  their  armies,  cannot  be  fully  considered  until  the  power 
to  call  forth  the  militia  is  examined.  The  discussion  of  the 
question  will  therefore  be  postponed  till  the  close  of  this  sec- 
tion. 

II.   The  Power  to  Govern  the  Forces. 

§  467.  Congress  may  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces.  It  is  to  be  noticed 
that  this  power  is  entirely  independent  of  the  ordinary  judicial 
department  of  the  general  government.  It  is  applicable  only 
to  a  special  class  of  men,  —  those  in  the  land  or  naval  forces. 
The  fifth  Amendment  of  the  Constitution  shows  conclusively 
that  the  rules  to  be  made  under  this  clause  were  to  be  out- 
side of  ordinary  civil  judicial  proceedings  ;  for  it  excepts  per- 
sons  in  the  land  or  naval  forces,  and  those  in  the  militia  w  iwu 


296  POWER   TO   GOVERN   THE   FORCES. 

in   actual   service  in  time  of  war  or   public  danger,  from  the 
safeguard  of  an  indictment. 

§  408.  The  language  of  this  clause  should  be  carefully  ob- 
served. Congress  may  make  rules,  the  object  of  which  shall 
be  regulation  and  government.  It  cannot  utter  exceptional, 
or  transitory  mandates  which  affect  the  management  and  dis- 
position of  the  army  or  the  navy.  This  particular  grant  of 
power  confers  no  authority  upon  the  legislature  to  usurp  the 
functions  of  the  commander-in-chief.  The  rules  framed  by 
Congress  for  the  regulation  and  government  of  the  land  and 
naval  forces,  form,  together,  the  military  law  of  the  land  ; 
they  are  a  part  of  the  general  statutory  legislation  of  Congress 
applicable  to  a  special  and  designated  class  of  persons,  soldiers 
and  sailors  ;  they  stand  on  exactly  the  same  footing  as  any 
other  statutes  ;  are  just  as  binding  ;  and  the  decisions  of  courts 
thereunder  are  just  as  effective  as  any  other  laws,  or  any  other 
judgments. 

§  -±69.  This  military  law,  or  in  other  words,  this  code  of 
positive,  enacted,  statutory  rules  for  the  government  of  the 
land  and  naval  forces,  is  something  very  different  from  martial 
law,  which,  if  it  exists  at  all,  is  unwritten,  a  part  and  parcel 
of  the  means  and  methods  by  which  the  Commander-in-chief 
may  wage  effective  war,  something  above  and  beyond  the 
jurisdiction  of  Congress  ;  for  that  body  has  no  direct  authority 
over  the  actual  conduct  of  hostilities,  when  war  has  been  ini- 
tiated. Whether  there  be  any  martial  law  in  this,  its  proper 
sense,  will  be  considered  in  a  subsequent  chapter. 

§  470.  Under  this  grant  of  power,  Congress  may  establish 
a.  military  discipline,  —  may  adopt  a  system  of  tactics  ;  define 
military  offences,  provide  for  their  punishment  ;  organize 
courts  martial,  and  prescribe  their  jurisdiction,  practice,  and 
the  mode  of  executing  their  sentences.  This  has  been  done, 
not  only  in  our  own  country,  but  in  every  other  land  where 
there  is  a  standing  army.  It  should  be  carefully  borne  in 
mind,  however,  that  the  only  legitimate  subjects  of  this  mili- 
tary code  of  regulations  are  the  land  and  naval  forces, — the 
officers  and  men  of  the  army,  the  navy,  and  the  militia  wher. 
in  active  service  of  the  United  States. 


THE   MILITARY   AND   WAR  POWERS.  297 

§  471.  During  a  late  session  of  Congress,  a  statute  was  en- 
acted which  prescribes  in  substance  that  all  orders  of  the  Presi- 
dent to  the  army,  or  any  portion  thereof,  shall  be  directed  to, 
and  shall  issue  through,  the  general ;  and  that  the  general  shall 
have  his  permanent  headquarters  at  Washington.  The  Presi- 
dent objected  to  these  provisions  on  the  ground  that  they  in- 
terfered with  his  independent  functions  as  Commander-in-chief. 
It  may  not  be  improper  to  express  the  opinion,  that  the  first 
of  these  statutory  requirements  is  clearly  not  obnoxious  to  the 
criticism  made  upon  it.  It  is  simply  a  rule  for  the  regulation 
of  the  army ;  a  rule  similar  in  its  nature  to  hundreds  of  others 
which  are  found  in  the  code  of  tactics  adopted  by  authority  of 
Congress.  It  does  not  limit  in  the  least  the  power  or  discre- 
tion of  the  President  as  to  the  orders  he  may  issue  ;  but  only 
regulates  the  manner  in  which  those  orders  shall  be  communi- 
cated from  superior  to  subordinate.  The  other  requirement 
of  the  statute  appears  to  be  more  open  to  objection.  It  seems 
to  restrict  the  President  in  the  exercise  of  his  functions  as 
Commander-in-chief;  it  prevents  him  from  assigning  the  gen- 
eral to  such  place  and  position  as  he  deems  expedient ;  and  so 
far  forth  it  interferes  with  his  power  to  dispose  of  the  forces. 
If  Congress  may  do  this  in  respect  to  one  officer  high  in  rank, 
it  may  do  it  in  respect  to  all  officers,  and  the  private  soldiers, 
and  may  thus  assume  to  itself  the  entire  attributes  of  Com- 
mander-in-chief. 

Third.      Those  Powers  which  relate  to  the  Employment  of  the 
Militia  in  the  Service  of  the   General  Government. 

§  472.  In  the  first  place  it  should  be  observed  that  the  Con- 
stitution makes  no  provision  for  a  national  militia  under  the 
exclusive  control  and  direction  of  the  central  government. 
The  militia  was,  and  still  is,  that  of  the  states,  the  jurisdiction 
iif  the  United  States  over  it  being  at  all  times  partial  and  ex- 
feptional.  Thus  the  appointment  of  officers,  and  the  training 
of  this  militia  is,  under  every  emergency,  left  to  the  states. 
Congress  may  adopt  a  mode  of  training,  a  system  of  tactics  ; 
and,  if  it  does,  the  several  states  must  follow  that  mode  and 


298  POWEB    OVEB   THE   MILITIA. 

system  ;  if  it  does  not,  each  state  may  choose  one  foi  itself. 
While  any  part  of  the  militia  are  employed  in  the  service  of 
the  United  States,  Congress  may  prescribe  the  rules  for  their 
government,  —  that  is,  may  bring  them  under  its  code  of  mili- 
tary law.  At  all  other  times,  under  all  other  circumstances, 
the  regulation  and  government  are  exclusively  within  the  con- 
trol of  the  respective  states. 

§  473.  Finally,  Congress  may  provide  for  calling  forth  the  mi- 
litia in  order  to  execute  the  laws  of  the  Union,  —  that  is,  to  aid 
the  civil  authority  when  the  jjosse  comitatus  fails  ;  and  in  order 
to  suppress  insurrections  and  repel  invasions,  —  that  is,  when 
the  civil  authority  is  utterly  powerless,  is  entirely  abanduned, 
and  a  resort  to  actual  hostilities,  to  war,  is  necessary.  This 
is  the  extent  of  the  power  which  the  general  government  may 
exercise  over  the  militia  ;  and  it  will  be  observed  that  in  no 
case  can  they  be  compelled  to  serve  without  the  territory  of 
the  Union.  The  laws  must  be  executed  where  they  have 
force,  and  that  is  only  within  the  country  itself.  Insurrectiuns 
and  invasions  must  be  internal.  We  do  not  repel  an  invasion 
by  attacking  the  invading  nation  upon  its  own  soil.  Still,  there 
can  be  no  question  that  the  militia  may  be  called  out  before 
the  invaders  have  set  foot  upon  our  territory.  It  is  a  fair  con- 
struction of  language  to  say  that  one  means  of  "  repelling  "  an 
invasion  is  to  have  a  force  ready  to  receive  the  threatened  in- 
truders when  they  shall  arrive.  The  same  principle  must 
apply  to  the  suppression  of  insurrections.  If  the  government 
must  wait  until  the  invaders  are  actually  upon  the  soil  doing 
their  work  of  destruction,  or  until  the  insurgents  have  actually 
risen  and  commenced  their  process  of  social  disorganization, 
before  it  can  resort  to  all  the  means  appropriate  to  secure  its 
own  safety  and  integrity,  the  United  States  is  indeed  the  weak- 
est of  all  nations. 

§  474.  The  language  of  the  constitutional  grant  of  power 
should  be  noticed.  It  is  not  that  Congress  may  call  forth,  but 
may  provide  for  calling  forth,  the  militia.  The  legislature  may 
therefore  pass  general  laws  applicable  to  circumstances  that 
may  arise  in  the  future,  and  therein  may  empower  the  Execu- 
tive—  and  perhaps  any  other  designated  individual  —  to  sum- 


THE   MILITARY  AND   WAR   POWERS.  299 

lion  the  militia  into  active  service,  upon  the  happening  of 
either  contingency  contemplated  by  the  Constitution.  Such  a 
law  is  almost  indispensable.  The  Congress  is  not  always  in 
session  ;  and  circumstances  may  arise  during  its  recess  de- 
manding an  immediate  resort  to  arms,  when  a  delay  would  be 
ruinous.  Governed  by  these  considerations,  Congress  at  a 
very  early  day  (1795)  passed  a  statute  authorizing  the  Presi- 
dent to  call  forth  the  militia  in  the  cases  prescribed  by  the 
organic  law,  which  is  still  operative.  Under  its  provisions 
President  Lincoln  made  his  first  requisition  for  75,000  men. 

§  475.  Two  cases  have  been  decided  by  the  Supreme  Court 
of  the  United  States  under  the  grant  of  power  to  call  forth  the 
militia.  These  cases,  and  especially  the  first  in  order  of  time, 
enter  somewhat  fully  into  a  discussion  of  the  relative  powers 
of  the  nation  and  of  the  states  over  the  militia,  the  nature 
and  object  of  this  military  organization,  etc.,  which  it  is  un 
necessary  to  quote.  The  reader  is  referred  to  the  judgments 
themselves  for  the  views  of  the  different  members  of  the  court. 
I  will  only  state  the  points  decided.  In  the  first  case,  Hous- 
ston  v.  Moore,1  it  was  held  that  the  several  states  have  concur- 
rent jurisdiction  with  the  United  States  to  aid  the  general  gov- 
ernment in  callincr  forth  the  militia,  though  not  to  hinder  or 
prevent  such  calling  forth.  Therefore  a  statute  of  Pennsyl- 
vania, providing  that  persons  called  forth  by  the  United  States, 
and  neglecting  or  refusing  to  obey  the  call,  should  be  tried  by 
a  state  court  martial,  and  punished  according  to  state  laws, 
was  declared  to  be  constitutional  and  valid.  I  remark  in  pass- 
ing, that  the  principle  upon  which  this  case  rests  is  identical 
with  that  which  supports  the  authority  of  the  states  to  punish 
counterfeiters  of  national  coin  and  securities,  which  Avas  re- 
ferred to  in  §  420.  The  states  also  acted  upon  the  same  prin- 
ciple in  the  aid  which  they  gave  to  the  general  government 
during  the  late  civil  war,  by  promoting  the  enlistment  of  vol- 

mteers. 

§  476.  In  Martin  v.  Mott2  it  was  decided  that,  under  the 
nuthority  given  to  the   President  by  the  statute  of  1795,  to 

gall  forth  the  militia  under  certain  circumstances,  the  power  is 
1  5  Wheatou's  R.  1.  2  12  Wbeaton's  R.  19 


300  CONSCRIPTION. 

exclusively  vested  in  him  to  determine  whether  those  circum- 
stances exist ;  and  when  he  lias  determined  by  issuing  his 
call,  no  court  can  question  his  decision.  This  was  the  impor- 
tant doctrine  settled  by  the  case  ;  but  it  was  also  held  that 
when  a  person  had  been  ordered  to  appear  and  report  himself 
under  such  call,  and  had  neglected  to  obey,  and  had  in  fact 
never  appeared  and  been  mustered  in,  he  was  still  liable  to  be 
tried  and  punished  by  a  court  martial  appointed  by  the  author- 
ity of  the  United  States,  although  the  trial  took  place  several 
years  after  the  war  was  ended,  to  serve  in  which  the  militia 
had  been  ordered  out. 

Conscription. 

§  477.  I  am  now  brought  to  the  question  whether,  under 
either  of  these  classes  of  powers,  —  that  to  raise  armies,  and 
that  to  call  forth  the  militia, —  Congress  may  adopt  the 
method  of  a  draft  or  conscription.  It  is  well  known  that  the 
mode  has  been  resorted  to.  In  March,  1863,  Congress  passed 
an  act  for  "  enrolling;  and  calling  out  the  national  forces." 
The  preamble  of  this  statute  sets  forth  the  existence  of  the 
rebellion  ;  of  the  war  raging  to  suppress  it ;  the  necessity  of 
a  military  force  ;  and  the  duty  of  all  persons  to  contribute  to- 
wards its  raising  and  support.  The  act  then  provides  in  sub- 
stance for  the  enrolling  of  all  citizens  between  the  ages  of 
twenty  and  forty-five  years  ;  that  all  these,  with  a  few  desig- 
nated exceptions,  should  constitute  the  "  national  forces,"  and 
be  liable  to  serve  when  called  out  by  the  President.  Pro- 
vision is  made,  by  means  of  local  districts  and  officials,  for 
completing  the  enrolment  and  enforcing  the  call  ;  the  quotas 
called  from  each  district  are  to  be  drawn  by  lot,  etc.  The 
President  made  a  call  which  was  apportioned  among  the  states, 
and  the  quotas  of  each  state  allotted  to  the  several  districts. 

§  478.  It  will  be  seen  that  this  law  resembles,  in  some  of  its 
practical  features,  the  process  of  calling  forth  the  militia  ;  but 
in  others  it  is  entirely  different.  I  remark,  by  way  of  intro- 
duction, that  if  such  a  statute  may  be  passed  in  time  of  war, 
and  adapted  to  a  state  of  hostilities,  it  may  also  be  passed  in 
time  of  peace,  and  made  the  permanent  policy  of  the  govern- 


THE   MILITARY   AND   WAR  POWERS.  301 

tnent.  Congress,  with  two  exceptions,  gets  no  increase  of 
direct  power  over  military  matters  in  time  of  war  :  it  has  only 
new  and  singular  opportunities  for  calling  its  powers  into 
action,  which  would  probably  be  left  dormant  in  periods  of 
tranquillity.  The  exceptions  to  this  general  principle  are,  the 
power  to  make  rules  concerning  captures,  and  the  power  to 
provide  for  calling  forth  the  militia.  The  conscription  meas- 
ures certainly  do  not  fall  within  the  first  of  these  exceptions  ; 
it  will  be  shown  in  the  sequel  that  they  do  not  fall  under  the 
second.  That  Congress  would  not  be  likely  to  adopt  this 
mode  of  replenishing  its  armies  in  peace,  is  plain  enough  ;  its 
direct  responsibility  to  the  people  is  sufficient  to  prevent  a 
resort  to  so  stringent  a  method,  except  under  circumstances  of 
the  direst  necessity. 

§  479.  I  am  aware  of  but  one  judicial  decision  in  which  the 
constitutionality  of  this  conscription  act  was  elaborately  con- 
sidered and  passed  under  review.  The  case  was  Knudler  v. 
Lane,1  and  arose  in  Pennsylvania.  Its  history  was  somewhat 
peculiar.  In  that  state  the  Supreme  Court  consists  of  five 
judges.  Each  of  these  presides  at  Nisi  Prius  or  Circuit,  for 
the  trial  of  jury  causes,  and  the  hearing  of  equity  suits.  Ac- 
cording to  their  practice,  it  is  customary,  when  a  very  impor- 
tant and  difficult  question  is  presented  to  a  single  judge  at 
Nisi  Prius,  for  him  to  call  upon  all  his  brethren  for  their  assist- 
ance and  advice  in  its  decision  ;  and  thus  the  parties  have  the 
opinions  of  a  full  bench  at  once. 

The  case  now  referred  to  arose  as  follows  :  The  plaintiff 
had  been  enrolled,  and  was  subject  to  a  draft.  He  commenced 
a  suit  in  equity  against  the  officers  who  had  the  matter  in 
charge,  and  prayed  an  injunction  restraining  them  from  prose- 
cuting the  draft ;  the  only  ground  alleged  being  the  unconsti- 
tutionality of  the  conscription  act.  Application  for  a  prelim- 
inary injunction  was  made  to  Woodward,  J.,  at  Nisi  Prius 
He  called  in  the  other  judges,  who  differed  in  opinion  ;  Low- 
rie,  C.  J.,  Woodward  and  Thompson,  JJ.,  holding  the  statute 
void,  while  Strong  and  Read,  JJ.,  dissented.  The  prelimi- 
nary injunction  was  therefore  awarded.  Shortly  after,  and  be- 
1  9  Wright's  (45  Perm.  St)  R.  238. 


302  CONSCRIPTION. 

fore  the  case  was  finally  disposed  of,  a  general  election  took 
place  in  Pennsylvania,  this  pending  litigation  entering  largely 
into  the  political  canvass.  Judge  Lowrie's  term  of  office  hav- 
ing expired,  he  was  a  candidate  for  reelection  ;  but  Judge 
Agnew  was  chosen  in  his  place.  A  motion  was  soon  after 
made  before  Strong,  J.,  at  Nisi  Prius,  to  dissolve  the  injunc- 
tion. The  whole  court  were  again  called  in,  and  Strong, 
Read,  and  Agnew,  JJ.,  being  the  majority,  dissolved  the  in- 
junction ;  Woodward,  C.  J.,  and.  Thompson,  J.,  now  dissent- 
ing. The  Supreme  Court  of  Pennsylvania  thus  finally  deter- 
mined the  act  of  Congress  to  be  a  constitutional  exercise  of 
power.  It  must  be  confessed,  however,  that  the  case  partakes 
so  largely  of  a  certain  political  and  partisan  character,  that  it 
cannot  be  considered  an  impartial  authority  on  either  side.  I 
shall  endeavor,  rejecting  the  unnecessary  oratory  of  the 
judges,  to  present  their  legal  arguments  in  a  condensed 
form. 

§  480.  Against  the  constitutionality  of  the  statute,  it  was 
urged:  (1.)  That  it  was  not  valid  under  the  power  to  call 
forth  the  militia,  because  the  appointment  of  officers,  etc.,  was 
not  given  to  the  states.  This  objection  is  unanswerable  ;  and 
in  fact  it  was  conceded  upon  the  other  side,  that  the  statute 
must  be  sustained  solely  under  the  power  given  to  raise 
armies.  (2.)  It  did  not  fall  within  that  power,  because  the 
Constitution  contemplated  the  raising  of  armies  only  by  the 
ordinary  method  of  enlistments  ;  that  this  could  not  be  said  to 
be  a  necessary  mode  of  exercising  the  power,  because  Con- 
gress had  the  express  authority  to  call  out  the  militia  to  sup- 
press insurrections,  and  as  this  means  had  not  been  resorted 
to,  none  other  could  be  called  necessary.  This,  it  will  be 
noticed,  was  a  repetition  of  the  old  argument  so  often  urged 
in  respect  to  other  acts  of  the  legislature,  and  so  often  an- 
swered by  the  Supreme  Court.  It  was  virtually  saying  that 
where  one  measure  can  be  made  use  of,  none  other  can  be 
necessary,  and  none  other  can  be  adopted.  (3.)  It  was  ob- 
jected that  this  statute  deprived  the  states  of  their  militia, 
tvhich  was  sacredly  reserved  to  them  ;  that  the  persons  be- 
tween the  ages  of  twenty  and  forty-five  constituted  the  mi- 


THE   MILITARY  AND    WAR   TOWERS.  oOJ 

litia,  and  as  the  President  might,  under  the  law,  call  them  ail 
Dut,  the  stater,  might  be  left  defenceless. 

§  481.  In  favor  of  the  act  of  Congress,  and  in  reply  to  these 
objections,  it  was  urged  :  (1.)  That  the  statute  was  not  rested 
on  the  power  to  call  forth  the  militia.  (2.)  That  the  grant  of 
power  to  raise  armies  includes  all  the  means  by  which  armies 
can  be  raised  ;  that  this,  and  all  other  general  grants  of  power, 
are  complete ;  that  Congress  has  full  liberty  to  make  any 
choice  of  means  that  will  tend  to  accomplish  the  end  which 
the  Constitution  proposed.  This  was  applying  to  the  power 
to  raise  armies,  the  old  argument  which  had  been  so  many 
times  enforced  by  the  Supreme  Court,  and  by  it  applied  to 
the  powers  of  taxing,  of  regulating  commerce,  of  borrowing 
money.  (3.)  That  the  last  objection  stated  by  the  opponents 
of  the  law,  was  merely  an  argument  ab  ineonvenhnti,  and 
went  to  the  policy  of  the  measure,  and  not  to  the  power  of  the 
legislature  ;  that  it  was  also  groundless,  because  by  the  express 
terms  of  the  Constitution,  Congress  may  call  forth  all  the 
militia,  and  thus  leave  the  states  defenceless  ;  that  an  exercise 
of  their  conceded  power  over  the  militia  might,  therefore,  be 
as  stringent  upon  the  states  as  could  be  the  possible  effect  of 
this  statute. 

§  482.  It  may  be  added,  that  the  third  objection  can  in  sub- 
stance be  applied  with  equal  force  to  the  exercise  of  many 
other  legislative  functions  by  the  general  government  —  for 
example,  that  of  taxation.  If  it  be  true  that  an  act  of  Con- 
gress is  unconstitutional  because  it  may  possibly  deprive  the 
states  of  all  control  over  a  subject-matter  within  their  juris- 
diction, then  every  tax  law  is  invalid  ;  because,  if  the  govern- 
ment chose  to  pursue  such  extreme  measures,  they  might 
sweep  away  all  taxable  property,  and  leave  the  states  no  re- 
sources with  which  to  sustain  their  governments. 

In  fact  there  seems  to  be  a  strono-  analogv  between  the 
power  to  tax  and  the  power  to  raise  armies.  Both  are  in 
their  nature  somewhat  hostile  to  the  personal  interests  of  the 
individual  citizen  ;  yet  both  are  confessedly  indispensable  to 
the  existence  of  a  government  representing  the  sovereignty  of 
•■he  people.     The  exercise  of  the  taxing  power  is  unlimited ; 


30-1  CONSCRIPTION. 

its  extent  cannot  be  defined  ;  it  must  be  equal  to  the  emer- 
gencies which  shall  arise  in  the  history  of  the  nation,  —  emer- 
gencies which  no  foresight  can  possibty  anticipate.  These 
doctrines  have  been  announced  by  the  Supreme  Court,  and 
have  never  been  controverted.  The  extent  of  the  power  to 
raise  armies  is  equally  undefined  and  undefinable.  The  fram- 
ers  of  the  Constitution  did  not  pretend  to  foresee  the  exigen- 
cies which  must  be  met  in  the  future.  An  army  of  a  few 
thousands,  sufficient  to  garrison  the  principal  forts,  and  guard 
the  exposed  frontiers,  may  be  enough  under  ordinary  circum- 
stances ;  but  a  condition  may  arise  when  the  entire  able-bodied 
population  must  take  the  field,  or  the  life  of  the  nation  is  ex- 
tinguished. It  seems  absurd  to  say  that  Congress  may  pro- 
vide for  one  of  these  emergencies,  but  is  powerless  to  meet 
the  other.  To  sum  the  argument  up  in  a  word  :  the  Consti- 
tution nowhere  limits  the  size  of  the  national  army  ;  that  must 
be  determined  by  the  needs  of  each  particular  occasion  ;  what- 
ever means  are  necessary  to  raise  an  army  of  sufficient 
strength,  are  within  the  power  and  discretion  of  Congress. 
It  is  easy  to  declaim  against  a  conscription  law,  but  no  danger 
is  to  be  apprehended  from  it.  The  people  will  never  permit 
their  representatives  to  place  it  upon  the  statute  book,  unless 
they  themselves  are  engaged  in  a  death-struggle  for  national 
existence,  and  are  willing  to  sacrifice  not  only  their  property, 
but  their  persons,  for  the  country's  salvation.  Let  us  de- 
voutly hope  that  an  occasion  for  the  sacrifice  may  never  again 

SECTION  XI. 

THE   POWER    OVER    THE    TERRITORIES. 

§  483.  The  express  grants  which  directly  relate  to  this 
power  are  the  following  :  "  Congress  shall  have  power  .  .  . 
to  exercise  exclusive  legislation  in  all  cases  whatsoever  over 
such  district   (not  exceeding   ten   miles  square)   as   may   by 

1  As  a  matter  of  curiosity,  I  refer  to  Ex  parte  Coupland,  26  Texas  R 
J86,  in  which  the  validity  of  the  conscription  law  of  the  Confederate  Con 
gress  is  sustained. 


THE  POWER   OVER   THE   TERRITORIES.  305 

cession  of  particular  states,  and  the  acceptance  of  Congress, 
become  the  seat  of  government  of  the  United  States  ;  and  to 
exercise  like  authority  over  all  places  purchased  by  the  consent 
of  the  legislature  of  the  state  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dockyards,  and  other 
needful  buildings."  —  (Article  I.  Sec.  VIII.)  "  New  states 
may  be  admitted  by  the  Congress  into  this  Union  ;  but  no 
new  state  shall  be  formed  or  erected  within  the  jurisdiction 
of  any  other  state  ;  nor  any  state  formed  by  the  junction  of 
two  or  more  states,  or  parts  of  states,  without  the  consent  of 
the  legislatures  of  the  states  concerned,  as  well  as  of  the  Con- 
gress. The  Congress  shall  have  power  to  dispose  of,  and 
make  all  needful  rules  and  regulations  respecting,  the  territory 
or  other  property  belonging  to  the  United  States  ;  and  nothing 
in  this  Constitution  shall  be  so  construed  as  to  prejudice  any 
claims  of  the  United  States  or  of  any  particular  state."  — 
(Art.  IV.  Sec.  III.)  The  grant  to  Congress  of  authority  to 
declare  war,  and  to  the  President  of  power  to  make  treaties 
should  be  read  in  this  connection. 

§  484.  The  United  States  may  hold  two  different  species  of 
rights  and  capacities  over  the  territorial  regions  belonging  to 
it,  namely  :  (1.)  A  mere  proprietory  right,  or  the  right  to 
acquire  and  dispose  of  the  property  in  the  soil,  as  owner 
thereof;  and  (2)  a  political  right  of  dominion,  or  the  power 
to  govern  these  particular  portions  of  the  whole  country. 
Whatever  may  be  the  extent  of  these  two  classes  of  powers 
and  attributes,  the  exercise  of  them  belongs  to  Congress.  I 
shall  consider  them  separately. 

I.      Tlie  Right  of  Proprietorship. 

§  485.  When  the  Declaration  of  Independence  dissolved 
the  political  connection  between  the  colonies  and  Great  Brit- 
ain, most,  if  not  all,  the  states  had  within  their  determinate 
boundaries  certain  amounts  of  undisposed  lands,  the  proprie 
torship  of  which  had  resided  in  the  Crown.  It  was  assumed, 
by  universal  consent,  that  the  title  to  these  lands  passed  to  the 
states  in  which  they  were  respectively  situated.  But  several 
tf  the  states  also  laid  claim  to  large  tracts  of  unoccupied  terri- 
20 


306  THE  RIGHT  OF  PROPRIETORSHIP. 

tory  lying  to  the  west  of  their  ascertained  boundaries,  but  still 
embraced    within    the    vague    descriptions    of   their   charters* 

The  fact  of  possession  of  this  land  by  some  of  the  common- 
wealths was  an  obstacle  to  the  formation  of  the  loose  gov- 
ernment established  by  the  Articles  of  Confederation.  Those 
states  which  had  none  of  this  virgin  soil  insisted  that,  having 
been  wrested  from  the  ownership  of  the  Crown,  it  became  the 
property  of  the  entire  political  society  which  revolted  and 
thereby  destroyed  the  former  title  ;  that  the  advantages  flow- 
ing from  its  possession  belonged  to  all  the  states  in  common  ; 
that  the  proceeds  of  its  sale  should  go  to  defray  the  war  ex- 
penses of  all  the  thirteen  communities  which  had  shared  a 
common  danger  and  assumed  a  common  burden.  Maryland 
in  particular  was  emphatic  in  maintaining  these  views,  and  re- 
fused to  enter  the  Confederation  until  1781,  because  their 
justice  and  correctness  had  not  been  recognized.  Very  nat- 
urally the  states  which  claimed  the  separate  ownership  over 
the  western  regions  asserted  the  validity  of  their  chartered 
rights,  and  for  a  while  were  unwilling  to  part  with  any  pecul- 
iar advantages  which  might  result  to  themselves  from  such 
proprietorship. 

§  486.  The  Congress  of  the  Confederation  plainly  adopted 
the  view  that  this  land  belonged  of  right  to  the  nation  ;  for, 
on  the  6th  of  September,  1780,  they  passed  a  resolution 
strongly  urging  the  states  to  cede  the  Western  territory  to  the 
United  States,  and  declaring  that  peace  and  union  would  be 
thereby  promoted,  and  the  credit  of  the  government  estab- 
lished. A  second  resolution  of  the  10th  of  October,  1780, 
pledged  the  faith  of  Congress  that,  if  the  cession  were  made 
as  suggested,  the  lands  should  be  disposed  of  for  the  common 
benefit  of  the  United  States,  and  be  settled  and  formed  into 
states  which  should  become  members  of  the  Federal  Union. 
These  recommendations  finally  prevailed.  New  York  and 
Virginia  led  the  way,  and  other  states  followed  their  example. 
All  had  ceded  their  Western  lands  to  the  United  States  prior 
to  the  adoption  of  the  Constitution,  except  North  Carolina  and 
Georgia.  These  two  commonwealths  completed  the  work  im- 
mediately after  the  organization  of  the  present  government. 


THE   POWER   OVER   THE   TERRITORIES.  307 

§  487.  This  whole  proceeding  was  national  in  its  essential 
character;  it  assumed  the  existence  of  one  nation,  of  which 
the  states  were  subordinate  parts  ;  it  resulted  from  a  senti- 
ment, somewhat  undefined,  but  yet  powerful,  that  the  public 
domain  belonged,  not  to  some  of  the  thirteen  commonwealths, 
but  to  the  one  body  politic  which  had  revolted  and  declared 
itself  independent.  It  is  true  that  the  process  by  which  the 
result  was  reached  was  not  entirely  consistent  with  a  per- 
fected national  theory ;  but  it  should  be  remembered  that  the 
whole  organized  government  was  a  mass  of  glaring  inconsist- 
encies ;  that  the  people  and  the  rulers  were  groping  in  the 
dark  after  the  results  of  their  positive  acts.  The  nature  of 
these  results  is  plain,  even  though  the  path  leading  to  them 
was  somewhat  tortuous.  The  Articles  of  Confederation  rec- 
ognized no  United  States  except  that  "  in  Congress  as- 
sembled," and  gave  to  this  Congi'ess  no  power  whatever  to 
accept  a  cession  of  lands,  or  to  hold  and  manage  territory  ; 
but  the  existence  of  a  nation  back  of  this  limited  government, 
and  of  legislative  powers  in  addition  to  those  expressly  con- 
ferred, was  necessarily  involved  in  the  acts  both  of  the  states 
and  of  Congress. 

§  488.  Upon  the  adoption  of  the  Constitution,  the  United 
States  was  proprietor  of  the  soil  which  had  formerly  belonged 
to  the  Crown,  and  over  which  the  states  had  relinquished  all 
claim.  By  the  Treaty  of  Paris  (1803)  the  French  Republic 
ceded  the  territory  of  Louisiana.  By  the  treaty  of  Washing- 
ton (1819)  Spain  ceded  the  Floridas.  Vast  additions  of  soil 
were  subsequently  acquired  from  Mexico  as  the  result  of  con- 
quest. Within  the  present  year  the  Russian  possessions  in 
America  have  been  added  to  our  domain.  Although  the  Con- 
^titution  is  silent  in  respect  to  the  acquisition  of  new  territory, 
yet  all  departments  of  the  government,  and  the  people  them- 
s<jjves,  have  assented  to  the  construction  which  finds  the 
power  plainly  conferred  by  the  organic  law.  Indeed,  none 
but  those  who  would  interpret  the  Constitution  as  though  it 
were  a  penal  statute,  have  ever  doubted  the  authority  of  the 
nation,  through  some  one  of  its  governmental  agents,  to  ac- 
quire new  territory  and  add  it  to  the  domain  of  the  United 


808  THE  POWER   TO   ACQUIRE   TERRITORY. 

States.  Congress  may  declare  war,  and  the  President,  as 
commander-in-chief,  may  wage  war.  One  of  the  most  com- 
mon results  of  war  is  conquest  ;  and  unless  the  wars  of  this 
country  are  to  be  carried  on  differently  from  those  of  other 
nations,  and  unless  we  are  to  be  deprived  of  the  advantages  of 
success,  the  possibility  of  conquest  must  be  considered  as  in- 
cluded within  the  capacity  to  declare  and  wage  war.  The 
President,  with  the  advice  and  consent  of  two  thirds  of  the 
Senate,  may  make  treaties.  No  kinds  of  treaties  are  specified  ; 
no  limitations  are  placed ;  the  language  is  as  broad  as  pos- 
sible ;  indeed,  these  international  compacts  are  expressly 
declared  to  be  the  supreme  law  of  the  land.  No  species  of 
treaty  is  more  common  than  that  of  cession  ;  and  unless  we 
would  interpolate  a  restriction  which  the  language  of  the  Con- 
stitution does  not  require,  and  thereby  place  the  United  States 
in  a  condition  of  inferiority  to  all  other  countries,  we  must 
admit  that  territory  may  be  acquired  by  treaty.  Not  only 
have  presidents  and  senates  repeatedly  adopted  these  conclu- 
sions ;  not  only  has  Congress  ratified  them  by  its  legislation  ; 
not  only  have  the  people  gladly  confirmed  the  acts  of  their 
political  agents,  but  the  Supreme  Court  has  also  added  its 
authoritative  sanction.  In  The  American  Insurance  Co.  v. 
Canter,1  the  subject  came  before  the  court  in  such  a  manner 
as  to  require  a  formal  decision.  After  the  cession  of  Florida, 
Congress  erected  a  territorial  government  therein,  and  con- 
ferred upon  it  certain  legislative  powers.  The  validity  of  par- 
ticular acts  of  that  local  government  was  involved  in  the  case. 
But  a  question  lay  still  deeper  :  Had  the  United  States  the  ca- 
pacity to  acquire  new  territory  ?  If  not,  all  the  acts  of  Congress 
relating  to  Florida,  and  all  the  proceedings  of  the  territorial 
legislature,  were  alike  mere  nullities.  The  court  without  dif- 
ficulty  answered  the  question  in  the  affirmative.  C.  J.  Mar- 
shall said  :  2  "  The  course  which  the  argument  has  taken  will 
require  that,  in  deciding  this  question,  the  court  should  take 
mto  view  the  relation  in  which  Florida  stands  to  the  United 
States.  The  Constitution  confers  absolutely  on  the  govern* 
ment  of  the  Union  the  powers  of  making  war  and  of  making 
1  1  Peters'  B.  511.  2  Ibid.  542. 


THE   POWER   OVER   THE   TERRITORIES.  309 

treaties;  consequently  that  government  possesses  the  power  of 
acquiring  territory  either  by  conquest  or  by  treaty."  The 
^ourt,  in  the  celebrated  case  of  Dred  Scott,  —  which  will  be 
particularly  referred  to  in  the  sequel,  —  distinctly  affirmed 
the  same  doctrine. 

§  489.  As  the  United  States  became  sole  proprietor  of  un 
occupied  lands  which  had  belonged  to  the  British  Crown  prior 
to  the  Declaration  of  Independence,  and  subsequently  became 
proprietor  of  other  tracts  ceded  by  different  sovereigns,  the 
ordinary  rights  of  ownership  must  also  vest  in  the  nation. 
Among  these  are  the  powers  of  use  and  of  disposition.  The 
United  States  may  dispose  of  the  soil  which  it  owns.  Whether 
we  refer  the  capacity  to  the  express  provision  that  "  Congress 
shall  have  power  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  belong- 
ing to  the  United  States  ;"'  or  whether  we  consider  it  as 
necessarily  implied  in,  and  flowing  from,  the  power  to  acquire 
and  hold  the  soil  as  owner,  it  is  universally  conceded  that 
Congress  may  legislate  in  reference  to  the  disposition  of  public 
lands  ;  may,  by  general  laws,  prescribe  a  method  to  be  fol- 
lowed in  ordinary  sales  to  individual  purchasers  ;  or  may  pass 
special  statutes  which  operate  as  grants  to  determinate  per- 
sons. Congress  has  adopted  both  of  these  modes,  and  its  au- 
thority has  never  been  judicially  questioned.  Under  this 
power  the  system  regulating  the  survey  and  sale  of  public 
lands  has  been  organized,  land  offices  established,  and  a  code 
of  regulations  put  in  operation  which  affects  private  titles 
throughout  a  very  large  portion  of  the  country.  But,  Con- 
gress is  not  restricted  to  general  or  special  statutes  providing 
for  the  sale  of  the  public  domain.  The  legislative  practice  of 
aiding  educational  institutions  and  great  schemes  of  internal 
improvement  by  gifts  of  land,  has  become  settled  as  a  part  of 
the  govermental  policy.  Land  bounties  to  soldiers  and  their 
families  have  been  repeatedly  bestowed.  Nor  can  there  be 
\ny  doubt  that  laws  are  within  the  competency  of  Congress, 
which  provide  for  giving  tracts  to  actual  settlers,  and  which 
thus  promote  the  general  welfare  by  encouraging  personal 
thrift  and  industry,  a  regular  mode  of  life,  and  a  stable  society 
of  landowners. 


BIO  THE   RIGHT   OF   GOVERNMENT. 

IT.   The  Rigid  of  Government. 

§  490.  TJie  District  of  Columbia  and  other  ceded  plices.  — 
Congress  has  express  power  "to  exercise  exclusive  legislation 
in  all  cases  whatsoever  "  over  the  District  of  Columbia,  and 
over  all  places  ceded  by  the  states  for  forts,  dockyards,  etc. 
This  language  is  most  comprehensive.  It  clothes  Congress, 
in  respect  to  these  districts  of  territory,  with  all  the  capacities 
which  are  conferred  upon  it  as  the  national  legislature,  and 
with  those  which  are  granted  to  the  states.  Upon  whatever 
subjects  Congress  may  generally  legislate  in  respect  to  the 
whole  country,  and  upon  whatever  subjects  a  state  may  gener- 
ally legislate  in  respect  to  its  own  community,  upon  these  sub- 
jects Congress  may  generally  legislate  in  respect  to  these  par- 
ticular districts.  But  the  language  of  the  provision,  broad  as 
it  is,  must  be  taken  with  some  restrictions.  The  express  neg- 
ative limitations  upon  the  government,  and  particularly  those 
contained  in  the  Bill  of  Rights,  which  are  directed  against  all 
departments  alike,  must  apply  as  well  to  Congress  while  it  is 
legislating  for  these  districts  which  are  exclusively  under  its 
authority,  as  while  it  is  legislating  for  those  portions  of  the 
country  which  are  organized  into  states,  and  which  are  par- 
tially under  its  authority.  Again,  the  very  organization  of  the 
government,  and  the  provisions  for  choosing  official  persons, 
show  that  in  respect  to  a  large  mass  of  political  subjects,  Con- 
gress cannot  legislate  for  the  District  of  Columbia.  Thus, 
that  district  cannot  send  a  delegate  to  the  House  of  Repre- 
sentatives, or  to  the  Senate,  nor  can  it  appoint  presidential 
electors. 

§  491.  These  propositions  were  necessarily  involved  in  the 
judgment  of  the  Supreme  Court  rendered  in  Loughborough  v. 
Blake.1  Congress  had  laid  a  direct  tax  upon  the  states,  and 
had  extended  such  tax  to  the  District  of  Columbia.  The  suit 
was  brought  to  test  the  validity  of  this  statute.  Chief  Justice 
Marshall,  who  delivered  the  opinion  of  the  court,  observed : 
"  The  counsel  who  maintains  the  negative  has  contended  that 
Congress  must  be  considered  in  two  distinct  characters  ;  in  the 
l  5  Wheaton'sE.  317. 


THE   POWER   OVER  THE   TERRITORIES.  811 

one  character,  as  legislating  for  the  states ;  in  the  other,  as  a 
local  legislature  for  the  district.  In  the  latter  character  it  is 
admitted  the  power  of  levying  direct  taxes  may  be  exercised; 
but,  it  is  contended,  for  district  purposes  only,  in  like  manner 
as  the  legislature  of  a  state  may  tax  the  people  of  a  state  for 
state  purposes."  Without  examining  into  the  soundness  of  this 
distinction,  which  he  would  evidently  reject,  the  Chief  Justice 
proceeds  to  establish  the  following  propositions  as  the  conclu- 
sions at  which  the  court  arrives :  that  the  general  power  of 
Congress  to  lay  and  collect  taxes,  duties,  imposts,  and  excises, 
extends  to  all  places  over  which  the  government  extends,  to 
the  District  of  Columbia,  and  to  all  other  territories  of  the 
Union,  as  well  as  to  the  organized  states  ;  that  direct  taxes 
may  be  apportioned  among  the  territories  and  the  District  of 
Columbia,  as  well  as  among  the  several  states  ;  but  that  Con- 
gress is  not  bound  to  include  the  territories  and  the  District 
within  the  operation  of  a  law  laying  a  direct  tax.  The  court 
also  held  that  the  express  power  "  to  exercise  exclusive  juris- 
diction in  all  cases  whatsoever,"  within  the  District  of  Co- 
lumbia, includes  the  power  to  tax.  The  reasoning  which 
leads  to  these  conclusions  in  relation  to  the  function  of  taxing, 
must  apply  with  equal  cogency  to  the  exercise  of  other  legis- 
lative attributes  by  Congress. 

§  492.  But  is  Congress  absolutely  omnipotent  over  these 
districts  and  territories  ?  Is  it,  like  the  British  Parliament, 
bound  by  no  limitations  save  those  which  are  self-imposed  ? 
This  cannot  be  ;  nor  does  the  language  of  the  Constitution  re- 
quire a  construction  so  much  opposed  to  all  our  ideas  of  civil 
polity.  The  safeguards  of  individual  rights,  —  those  clauses 
which  preserve  the  lives,  liberty,  and  property  of  the  citizens 
from  the  encroachments  of  arbitrary  power,  must  apply  as  well 
to  that  legislation  of  Congress  which  is  concerned  exclusively 
with  the  District  of  Columbia  or  with  the  territories,  as  to  that 
which  is  concerned  with  the  states.  The  reasoning  which 
leads  to  this  conclusion  is  irresistible.'  A  Bill  of  Rights  is  cer- 
tainly no  less  important  for  the  District  of  Columbia  and  for 
jihe  territories  than  for  that  portion  of  the  nation  which  is  or- 
ganized into  states.     If  it  were  thought  necessary  that  Con- 


312  THE   EIGHT   OF   GOVERNMENT. 

gress  should  be  hedged  round  with  restrictions  while  it  is 
legislating  for  the  inhabitants  of  the  states,  who  may  be  par- 
tially protected  by  their  local  governments,  how  much  mure 
necessary  that  the  same  body  should  be  restrained  while  legis- 
lating for  the  inhabitants  of  those  districts  and  territories  over 
which  it  has  an  exclusive  control,  an  undivided  sway.  Now, 
it  is  to  be  remarked  that  the  mandatory  clauses  of  the  first 
eight  amendments  —  which  constitute  the  national  Bill  of 
Rights  —  are  clothed  in  the  most  general  language  ;  they 
make  no  exceptions  ;  they  apply  to  Congress  in  the  exercise 
of  all  its  functions  ;  in  general  terms  they  cover  its  legislation 
for  the  District  of  Columbia  and  for  the  territories,  as  well  as 
for  the  states.  These  clauses  must,  therefore,  be  compulsive 
upon  Congress  when  it  makes  laws  for  the  district  or  for  the 
territories,  unless  the  general  language  in  which  they  are 
framed  is  controlled  and  modified  by  the  particular  language 
of  the  provisions  which  expressly  relate  to  the  district  and  to 
the  territories.  These  special  provisions  declare  that  Congress 
shall  have  power  "  to  make  all  needful  rules  and  regulations 
respecting  the  territory,"  and  "  to  exercise  exclusive  legisla- 
tion in  all  cases  whatsoever  over  such  district."  There  is 
evidently  nothing  contradictory  between  the  first  of  these  pro- 
visions and  the  creneral  restrictions  of  the  Bill  of  Rights.  In 
the  second,  the  phrase  "  exclusive  legislation  "  simply  desig- 
nates Congress  as  the  only  law-making  body,  without  indicat- 
ing in  the  least  what  laws  may  be  made.  The  words,  "  in  all 
cases  whatsoever,"  are  the  only  ones  which  even  appear  to 
limit  the  general  mandates  of  the  first  eight  amendments  ;  and 
lere  the  contradiction  is  in  appearance  merely.  The  "  all 
cases  whatsoever  "  must  be  construed  to  mean  all  cases  in 
which  any  legislation  is  possible.  In  fact,  this  affirmative  grant 
of  general  legislative  power  is  limited  by  the  same  negative 
mandates  which  affect  all  the  other  affirmative  grants  to  the 
national  government.  Whatever  laws  may  be  passed,  —  and 
any  may  be  enacted  that  are  not  forbidden  by  the  express  or 
the  implied  negative  restrictions  of  the  Constitution,  —  Con- 
gress is  the  sole  body  from  which  they  must  issue. 

§  493.  These  conclusions  are  strengthened  by  another  con- 


THE   POWER   OVER   THE   TERRITORIES.  813 

sideration,  drawn  from  implied  limitations  upon  the  power  of 
Congress  to  legislate  for  the  District  of  Columbia  and  for  the 
territories.  The  whole  scheme  of  the  national  government 
implies  the  existence  of  some  organized  states,  and  the  sole 
action  of  these  states  in  constructing  and  carrying  on  the  gov- 
ernment. Thus  Congress  is  composed  of  Representatives  and 
Senators  from  the  states  ;  the  President  and  Vice-President 
are  chosen  by  electors  appointed  by  the  states.  It  is  univer- 
sally conceded  that  Congress  cannot,  by  virtue  of  any  power 
of  legislation  over  the  District  of  Columbia  or  the  territories, 
change  this  constituted  order,  and  provide  for  Representatives, 
Senators,  or  Presidential  electors  from  the  district  or  the  terri- 
tories. If  Congress  be  thus  confessedly  limited  in  the  exercise 
of  its  exclusive  legislative  function,  by  implied  restraints  of 
the  Constitution,  much  more  is  it  limited  by  those  restraints 
which  are  express,  and  which  are  directed  to  it  in  terms  which 
contain  no  exception. 

§  494.  Tlie  Territories.  —  That  Congress  possesses  the  power 
to  legislate  for  the  territories  ;  that  this  power  is  exclusive  : 
that  it  may  be  exercised  directly,  or  delegated  to  local  govern- 
ments set  up  by  Congress  and  retained  under  its  supervision, 
are  propositions  of  constitutional  construction  settled  by  the 
uniform  practice  of  the  government  and  by  the  unvarying 
decisions  of  the  Supreme  Court.  The  contrary  dogma,  that 
the  inhabitants  of  a  territory  have  the  entire  control  of  their 
own  local  concerns,  and  may  form  their  governments  inde- 
pendently of  the  national  legislature,  never  rose  above  the 
level  of  a  mere  party  cry  ;  it  never  obtained  the  assent  of  any 
department  of  the  government,  and  has  been  distinctly  repudi- 
ated by  the  Supreme  Court. 

The  power  of  Congress  to  govern  the  territories  being  thus 
conceded  to  exist,  to  what  source  is  it  to  be  referred  ?  Does 
it  flow  from  the  express  clause  which  declares  that  "  Congress 
shall  have  power  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  and  other  property  of  the 
United  States  "  ;  or  is  it  necessarily  implied  in,  and  a  result 
of,  the  capacity  to  acquire  and  hold  new  territory  by  conquest 
■>r  cession  ?     I  believe  that  this  question  is  unimportant ;  that 


314  THE   RIGHT   OF   GOVERNMENT. 

from  whatever  source  the  power  is  derived,  it  is  ample  to  meet 
all  the  necessities  of  the  case;  that  the  legislative  attributes  and 
functions,  proceeding  from  either  origin,  are  the  same  in  kind 
and  degree.  That  Congress  has  legislated  in  respect  to  the 
government  of  the  territories,  from  the  period  immediately 
after  the  adoption  of  the  Constitution  to  the  present  time  ;  and 
that  its  legislation,  however  varying  in  form,  has  been  ade- 
quate, are  facts  which  cannot  be  disturbed. 

§  495.  The  subject  was  judicially  examined  for  the  first 
time  in  the  American  Insurance  Company  v.  Canter.1  In 
1823  Congress  passed  "  an  act  for  the  establishment  of  a  ter- 
ritorial government  in  Florida,"  which  created  a  territorial 
legislature  with  certain  defined  powers.  This  legislature 
erected  a  local  court,  and  the  validity  of  a  judgment  rendered 
by  this  tribunal  was  called  in  question.  Chief  Justice  Mar- 
shall delivered  the  opinion,  from  which  the  following  extract 
will  be  instructive  :  2  "  The  treaty  is  the  law  of  the  land  and 
admits  the  inhabitants  of  Florida  to  the  enjoyment  of  the  privi- 
leges, rights,  and  immunities  of  the  citizens  of  the  United 
States.  It  is  unnecessary  to  inquire  whether  this  is  not  their 
condition  independent  of  stipulation.  They  do  not  however 
participate  in  political  power  ;  they  do  not  share  in  the  govern- 
ment till  Florida  shall  become  a  state.  In  the  mean  time 
Florida  continues  to  be  a  territory  of  the  United  States,  gov- 
erned by  virtue  of  that  clause  in  the  Constitution  which  em- 
powers Congress  to  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the 
United  States.  Perhaps  the  power  of  governing  the  territory 
belonging  to  the  United  States,  which  has  not  by  becoming  a 
state  acquired  the  means  of  self-government,  may  result  neces- 
sarily from  the  facts  that  it  is  not  within  the  jurisdiction  of  any 
particular  state,  and  is  within  the  power  and  jurisdiction  of  the 
United  States.  The  right  to  govern  may  be  the  inevitable 
consequence  of  the  right  to  acquire  territory.  Whichever 
may  be  the  source  whence  the  power  is  derived,  the  possession 
of  it  is  unquestioned."  Again,  he  remarks  :  "  In  legislating 
for  them  [the  territories]  Congress  exercises  the  combineu 
powers  of  the  general  and  of  a  state  government." 

1  1  Peters'  R.  511.  2  Ibid.  542. 


THE  POWER  OVER   THE   TERRITORIES.  815 

§  496.  In  the  celebrated  case  of  Dred  Scott  v.  Sandford,1 
the  power  of  Congress  to  legislate  for  the  territories  was  dis- 
cussed at  great  length.  The  complicated  facts  of  this  case 
need  not  now  be  stated.  It  is  enough  to  say  that  in  the 
year  1820  Congress  passed  a  statute  which  declares  that 
slavery  shall  be  forever  prohibited  in  all  that  part  of  the  terri- 
tory ceded  by  France,  under  the  name  of  Louisiana,  which 
lies  north  of  thirty-six  degrees  thirty  minutes  north  latitude, 
and  not  included  within  the  limits  of  Missouri.  The  court 
considered  itself  called  upon  to  determine  whether  Congress 
was  authorized  to  pass  this  law.  They  pronounced  the  act 
null  and  void.  The  judgment  of  the  court  and  the  opinions  of 
the  individual  judges  are  too  long  to  be  quoted  or  condensed. 
My  purpose  will  be  attained  by  stating  the  course  of  argument 
pursued  by  Chief  Justice  Taney,  in  which  all  the  judges  con- 
curred, except  Justices  McLean  and  Curtis  who  dissented  from 
the  reasoning  and  from  the  conclusions,  and  Mr.  Justice  Nel- 
son, who  expressed  no  opinion  upon  the  validity  of  the  law  in 
question. 

§  497.  The  following  propositions  are  discussed  and  main- 
tained in  this  judgment  of  the  Chief  Justice  :  The  government 
has  an  unlimited  authority  to  acquire  territory  by  treaty  oi 
conquest,  for  the  purpose  of  having  the  same  formed  into  new 
states,  but  not  for  the  purpose  of  holding  the  same  as  colonies. 
The  power  to  govern  such  territory  is  then  examined.  By  a 
very  elaborate  argument, — which,  it  must  be  conceded,  is 
extremely  artificial,  —  the  conclusion  is  reached  that  the  clause 
in  Article  IV.  was  intended  to  apply  solely  to  the  unoccupied 
lands  which  had  belonged  to  the  Crown  prior  to  the  Declara- 
tion of  Independence,  and  which  had  been  surrendered  by  the 
states  during  the  Confederation.  The  ordinance  of  1787, 
passed  by  the  Confederate  legislature,  and  reen acted  by  the 
national  Congress,  which  established  local  governments  for  this 
territory,  and  prohibited  slavery  therein,  could  not,  therefore, 
be  taken  as  a  precedent  for  similar  legislation  in  reference  to 
regions  subsequently  acquired.  Ample  power  to  legislate  for 
die  new  territories  does,  however,  exist ;  and  it  results  from 
1  19  Howard's  R.  393. 


316  THE  DRED  SCOTT  CASE. 

the  necessities  of  the  case,  from  the  antecedent  capacity  to 
acquire  and  hold  additional  domain,  and  from  the  fact  that 
Congress,  as  the  agent  of  the  whole  nation,  is  the  only  body 
which  can  make  laws  for  the  government  of  communities  not 
organized  into  states.  As  the  districts  acquired  by  treaty  or 
conquest  belong  to  the  whole  country,  the  legislation  in  respect 
to  them  must  be  for  the  common  benefit,  and  cannot  discrim- 
inate in  favor  of  or  against  the  inhabitants  or  institutions  of 
any  particular  portion  of  the  United  States.  In  making  laws 
for  these  territories,  Congress  is  restrained  by  the  negative 
clauses  of  the  first  eight  amendments  to  the  Constitution  ;  it 
cannot  deprive  a  person  within  their  boundaries  of  life,  liberty, 
or  property  without  due  process  of  law,  or  do  therein  any  other 
of  the  acts  inhibited  by  the  Bill  of  Rights.  Property  in  slaves 
is  recognized  and  protected  by  the  Constitution  ;  it  is  of  as 
high  a  character  as  property  in  any  other  things  ;  Congress 
cannot  discriminate  against  it.  A  statute  prohibiting  slavery 
in  the  territories  where  all  citizens  have  a  common  right  to  go 
and  to  carry  the  things  owned  by  them,  deprives  such  citizens 
of  their  property  without  clue  process  of  law,  and  is  therefore 
forbidden  by  the  Bill  of  Rights,  and  is  void. 

§  498.  Sucli  is  an  outline  of  the  judgment  to  which  a  major- 
ity of  the  court  assented.  I  will  very  briefly  examine  its 
positions. 

The  declaration  that  the  United  States  may  acquire  territory 
to  be  formed  into  states,  but  not  to  be  indefinitely  held  as 
colonies,  is  a  proposition  clearly  without  any  practical  value  ; 
it  is  a  rule  which  cannot  by  any  possibility  be  enforced.  Ter- 
ritory may  be  acquired,  and  must  be  governed  by  Congress. 
How  long  it  shall  remain  in  its  condition  of  dependence,  or 
when  it  shall  be  erected  into  a  state,  is  a  matter  to  be  deter- 
mined exclusively  by  the  national  legislature.  Congress  can- 
not be  compelled  to  act ;  nor  can  the  territories  be  clothed 
with  the  attributes  of  states  without  the  action  of  Congress. 
"  New  states  may  be  admitted  by  the  Congress  into  this 
Union."  This  language  is  simply  permissive.  When  the 
admission  shall  be  effected,  and  how  long  it  shall  be  delayed 
are  matters  residing  entirely  within  the  Congressional  dis- 
cretion. 


THE   POWER   OVER   THE   TERRITORIES.  317 

The  very  elaborate  argument  to  show  that  the  special  clause 
of  Article  IV.  applies  only  to  the  territory  which  belonged  to 
the  United  States  at  the  adoption  of  the  Constitution,  and  that 
the  power  to  govern  the  domain  subsequently  annexed  must 
be  referred  to  the  general  capacity  to  acquire  and  hold  addi- 
tional sod,  seems  at  best  to  have  been  an  unnecessary  labor. 
The  power  "  to  make  all  needful  rules  and  regulations  re- 
specting the  territory  "  cannot  be  any  more  comprehensive, 
cannot  include  any  greater  variety  of  particular  measures,  than 
the  undefined  power  of  legislation  which  is  conceded  to  belong 
to  Congress  by  virtue  of  the  nation's  proprietorship  in  the  re- 
gions to  be  governed.  If  there  be  any  difference  in  the  extent 
of  the  attributes  flowing  from  these  two  sources,  it  would  seem 
that  those  proceeding  from  the  latter  are  the  greater  and  the 
more  efficient.  But  to  whichever  of  these  origins  the  power 
to  legislate  for  the  new  territories  be  referred,  its  existence  is 
unquestioned,  and  the  limitations  upon  it  are  the  same. 

That  the  territories  are  acquired  and  held  for  the  whole  na- 
tion, and  that  legislation  in  respect  thereto  should  be  for  the 
common  benefit,  are  truisms.  To  exactly  the  same  extent, 
and  in  exactly  the  same  manner,  all  the  legislation  of  Congress 
should  be  for  the  general  welfare  of  the  United  States.  But 
of  the  particular  means  which  tend  to  produce  this  general 
welfare,  Congress  is  the  only  judge. 

The  position  assumed  by  the  court,  that  Congress,  in  the 
exercise  of  its  legislative  function  for  the  territories,  is  bound 
by  the  restrictive  clauses  of  the  Bill  of  Rights,  cannot  be  suc- 
cessfully attacked.  Indeed,  it  can  make  no  difference  whether 
that  body  proceeds  under  the  express  grant  of  Article  IV.,  or 
under  its  power  implied  in  the  capacity  to  acquire  and  hold 
additional  soil ;  in  either  case  it  is  equally  hedged  round  and 
trammelled  by  the  safeguards  of  individual  rights  that  are  con- 
tained in  the  first  eight  amendments.  No  American  citizen 
in  whose  veins  flow  any  drops  of  Saxon  blood,  and  who  inher- 
'ts  the  results  of  the  glorious  struggle  which  his  English  fore* 
fathers  maintained  with  power  and  prerogative,  can  deny  or 
question  this  doctrine. 

§  499.  While  the  doctrines  thus   far  considered  are  either 


318  THE  DEED  SCOTT  CASE. 

entirely  correct,  or  entirely  harmless,  the  concluding  and  sub- 
stantial  portion  of  this  celebrated  judgment  has  rendered  the 
Dred  Scott  case  a  by-word  and  a  hissing.  It  more  than  any 
thing  else  strengthened  the  convictions  and  intensified  the  feel- 
ings  of  the  North  against  the  institution  of  slavery  :  it  shook 
the  confidence  of  the  country  in  the  Supreme  Court  as  the 
ultimate  and  authoritative  interpreter  of  the  Constitution,  and 
in  one  day  undid  the  good  work  which  a  steady  devotion  for 
more  than  sixty  years  to  the  cause  of  nationality  had  accom- 
plished. I  mean  that  portion  of  the  judgment  which  pronounced 
property  in  slaves  to  be  equal  in  character  and  degree  to  prop- 
erty in  any  other  things  ;  which  declared  slavery  to  be  guarded 
and  upheld  by  the  national  Constitution,  and  not  to  be  the 
mere  creature  of  local  laws,  confined  to  the  very  districts 
within  which  those  laws  have  force  ;  and  which  decided  a  stat- 
ute of  Congress  prohibiting  slavery  in  the  new  territories  to  be 
invalid,  because  it  deprived  a  person  of  his  property  without 
due  process  of  law.  The  events  of  the  last  few  years,  and 
especially  the  thirteenth  amendment  to  the  Constitution,  have 
happily  removed  all  occasion  for  any  discussion  and  criticism 
of  these  doctrines  of  the  Supreme  Court ;  they  have  passed 
out  of  the  field  of  present  activities ;  let  them  be  buried  in 
oblivion. 

SECTION   XII. 

EXPRESS      PROHIBITIONS      UPON     THE     EXERCISE      OF     LEGISLATIVE 

POWERS. 

§  500.  I  shall  now  pass  to  the  consideration  of  express  pro- 
hibitions upon  legislative  action.  These  apply  either  to  Con- 
gress, or  to  the  states,  or  to  both.  Many  of  them  have  already 
been  referred  to  in  the  foregoing  sections  of  this  chapter.  I 
shall  pursue  the  following  order :  (1.)  Examine  those  directed 
to  the  national  legislature,  or  to  it  and  the  state  legislatures  in 
common  ;  and  (2.)  Examine  those  directed  alone  against  the 
state  legislatures.  These  several  prohibitory  clauses  are  found 
in  Sections  IX.  and  X.  of  Article  I.  Section  IX.  contains 
eight  subsections.     Of  these  the  fourth,  fifth,  and  sixth  relate 


BILLS   OF  ATTAINDER.  819 

to  taxation  and  the  regulation  of  commerce,  ai  d  have  been 
sufficiently  discussed.  The  first  refers  to  the  slave  trade,  and 
is  partly  obsolete  ;  it  certainly  requires  no  illustration.  The 
second  guards  the  privilege  of  the  writ  of  habeas  corpus.  The 
examination  of  this  all-important  clause  will  be  postponed  until 
I  shall  treat  of  the  Executive  powers.  The  remaining  para- 
graphs will  be  now  passed  under  review. 

First.      Those  Prohibitions  which  are  directed  to  Congress,  or 
to  it  and  the  State  Legislatures  in  common. 

I.     Sills  of  Attainder. 

§  501.  Article  I.  Section  IX.  §  3  is  in  these  words  :  "  No 
bill  of  attainder  or  ex  post  facto  law  shall  be  passed."  In  this 
connection  is  to  be  read,  §  1  of  Section  X.  "  No  state  .  .  . 
shall  pass  any  bill  of  attainder  or  ex  post  facto  law." 

Both  Congress  and  the  state  legislatures  are  therefore  for- 
bidden  to  pass  these  enactments  ;  and  if  they  should  under  any 
form  violate  the  mandates  of  the  organic  law,  their  attempted 
legislation  would  be  absolutely  void.  What  is  a  Bill  of  At- 
tainder ?  The  phrase  has  a  technical  meaning.  In  England 
such  statutes  were  well  known,  and  their  terrible  character  led 
our  forefathers  to  forbid  any  resort  to  them.  A  bill  of  attain- 
der in  England  is  a  statute  passed  by  Parliament  declaring  a 
person  by  name,  or  a  class  of  persons  by  description,  to  be 
guilty  of  crime,  and  ordering  him  or  them  to  be  capitally  pun- 
ished. A  similar  statute  inflicting  a  less  degree  of  punish- 
ment than  death,  was  technically  known  as  a  Bill  of  Pains  and 
Penalties. 

In  two  late  cases  before  the  Supreme  Court  of  the  United 
States,  Cummings  v.  The  State  of  Missouri,  and  Ex  parte 
Garland,  Mr.  Justice  Field,  delivering  the  opinion  of  a  major- 
ity of  the  court,  defined  the  phrase  in  language  somewhat 
different  in  form,  but  the  same  in  substance.  lie  says  :  l  "A 
Bill  of  Attainder  is  a  legislative  act  which  inflicts  punishment 
without  a  judicial  trial.  If  the  punishment  be  less  than  death, 
the  act  is  termed  a  bill  of  pains  and  penalties.  Within  the 
I  4  Wallace's  R.  323,  324. 


320  BILLS   OF   ATTAINDER. 

meaning  of  tlie  Constitution,  bills  of  attainder  include  bills  of 
pains  and  penalties.  In  these  cases  the  legislative  body,  in 
addition  to  its  legitimate  functions,  exercises  the  powers  and 
office  of  judge  ;  it  assumes,  in  the  language  of  the  text-books, 
judicial  magistracy;  it  pronounces  upon  the  guilt  of  the  part)*, 
without  any  of  the  forms  or  safeguards  of  trial  ;  it  determines 
the  sufficiency  of  the  proofs  produced,  whether  conformable  to 
the  rules  of  evidence  or  otherwise  ;  and  it  fixes  the  degree  of 
punishment  in  accordance  with  its  own  notions  of  the  enor- 
mity of  the  offence.  .  .  .  These  bills  are  generally  directed 
against  individuals  by  name  ;  but  they  may  be  directed  against 
a  whole  class.  .  .  .  These  bills  may  inflict  punishment 
absolutely,  or  may  inflict  it  conditionally." 

§  502.  Mr.  Justice  Miller,  pronouncing  the  opinion  of  the 
dissenting  judges,  in  the  same  case,  thus  describes  bills  of  at- 
tainder.1 "  Upon  an  attentive  examination  of  the  distinctive 
features  of  this  kind  of  legislation,  I  think  it  will  be  found  that 
the  following  comprise  those  essential  elements  of  bills  of  at- 
tainder, which  distinguish  them  from  other  legislation,  and 
which  made  them  so  obnoxious  to  the  statesmen  who  organized 
our  government.  They  were  convictions  and  sentences  pro- 
nounced by  the  legislative  department  of  the  government, 
instead  of  the  judicial ;  the  sentence  pronounced  and  the  pun- 
ishment inflicted  were  determined  by  no  previous  law  or  fixed 
rule  ;  the  investigation  into  the  guilt  of  the  accused,  if  any 
such  were  made,  was  not  necessarily  or  generally  conducted 
in  his  presence,  or  that  of  his  counsel,  and  no  recognized  rule 
of  evidence  governed  the  inquiry." 

§  503.  There  could  be  no  engine  of  tyranny  more  terrible 
than  Bills  of  Attainder,  and  Bills  of  Pains  and  Penalties.  No 
trial  is  necessary  ;  no  legal  evidence  ;  no  notice  to  the  accused ; 
no  opportunity  of  defence  ;  no  examination  of  witnesses  ;  even 
no  crime.  The  life  and  property  of  every  person  would  be  at 
the  mercy  of  the  legislature,  were  these  legislative-judicial  pro- 
ceedings allowed.  Mr.  Justice  Chase,  in  an  early  case  in  the 
Supreme  Court,  uses  language  which  I  will  quote.2  "  These 
orohibitions  very  probably  arose  from  the  knowledge  that  the 
1  4  Wallace's  R.  387,  388.  2  3  Dallas's  R.  389. 


BILLS   OF  ATTAINDER.  821 

Parliament  of  Great  Britain  claimed  and  exercised  the  power 
to  pass  such  laws  under  the  denomination  of  bills  of  attainder, 
or  hills  of  pains  and  penalties,  the  first  inflicting  capital,  and 
the  other,  less  punishment.  These  acts  were  legislative  judg- 
ments, and  an  exercise  of  judicial  power.  Sometimes  they 
respected  the  crime,  by  declaring  acts  to  be  treason  which 
were  not  treason  when  committed  (the  case  of  the  Earl  of 
Strafford  in  1641)  :  at  other  times  they  violated  the  rules  of 
evidence  to  supply  a  deficiency  of  legal  proof,  by  admitting 
one  witness,  when  the  existing  law  required  two  ;  by  receiving 
evidence  without  oath,  or  the  oath  of  a  wife  against  her  hus- 
band, or  other  testimony  which  the  courts  of  justice  would  not 
admit  (the  case  of  Sir  John  Fenwick  in  1696)  :  at  other 
times  they  inflicted  punishments,  where  the  party  was  not  by 
law  liable  to  any  punishment  (the  banishment  of  Lord  Clar- 
endon in  1669,  and  of  Bishop  Atterbury  in  172o)  :  and  in 
other  cases  they  inflicted  greater  punishment  than  the  law 
annexed  to  the  offence  (the  Coventry  Act,  1670).  The 
ground  for  the  exercise  of  such  legislative  power  was  this,  that 
the  safety  of  the  kingdom  depended  on  the  death,  or  other 
punishment,  of  the  offender.  With  very  few  exceptions  the 
advocates  of  such  laws  were  stimulated  by  ambition,  or  per- 
sonal resentment  and  vindictive  malice.  To  prevent  such  and 
similar  acts  of  violence,  and  injustice,  I  believe  the  federal  and 
state  legislatures  were  prohibited  from  passing  any  bill  of  at- 
tainder." 

Until  the  most  recent  times  the  national  judiciary  has  never 
been'called  upon  to  question  the  validity  of  any  statute  of  Con- 
gress or  of  a  state  legislature  on  the  ground  that  it  was  a  bill 
of  attainder.  The  Test  Oath  Cases,  however,  decided  during 
the  past  year,  involve  such  an  inquiry,  and  the  intrinsic  im- 
portance of  those  determinations  requires  that  I  should  exam- 
ine them  with  some  care. 

§  504.  Cummings  v.  Missouri:  Statement  of  facts.  —  The 
first  and  leading  case  is  that  of  Cummings  v.  The  State  of 
Missouri.1  In  June,  1865,  the  State  of  Missouri  adopted  a 
constitution  which  contained  a  provision  for  a   stringent  test 

i  4  Wallace's  R.  277. 
21 


322  THE   TEST   OATH   CASES. 

oath.  Article  II.  Section  3,  provided  that  "no  person  sliouU 
be  deemed  a  qualified  voter  who  has  ever  been  in  armed  hos- 
tility to  the  United  States,  or  to  the  lawful  authorities  thereof; 
or  has  ever  given  aid,  comfort,  countenance  or 
support  to  persons  engaged  in  any  such  hostility  ;  or  has  ever 
in  any  manner  adhered  to  the  enemies  of  the  United  States  ; 
or  has  ever  by  act  or  word  manifested  his  adher- 
ence to  the  cause  of  such  enemies,  or  his  desire  for  their  tri- 
umph ;  ....  or  has  ever  been  engaged  in  guerilla  war- 
fare  against  loyal  inhabitants  of  the  United  States  ;  or  has  ever 
knowingly  and  willingly  harbored,  aided,  or  countenanced  any 
person  so  engaged."  The  section  goes  on  to  describe  in 
minute  detail  other  acts  of  a  similar  character,  which  shall  dis- 
qualify a  person  from  voting.  It  proceeds  to  declare  that  no 
person  having  done  any  of  these  enumerated  acts  shall  be 
capable  of  holding  any  office  under  the  state  ;  or  of  being  an 
officer  in  any  corporation  public  or  private  ;  or  of  acting  as 
professor  or  teacher  in  any  educational  institution. 

Section  6  of  the  same  article  provides  for  an  oath  to  be 
taken  in  order  to  entitle  a  person  to  vote,  which  is  in  the  fol- 
lowing terms  :  "  I  do  solemnly  swear  that  I  am  well  acquainted 
with  the  terms  of  the  third  section  of  the  second  article  of  the 
constitution  of  the  State  of  Missouri,  adopted  in  the  year  1865, 
and  have  carefully  considered  the  same  ;  that  I  have  never, 
directly  or  indirectly  done  any  of  the  acts  in  said  section  speci- 
fied." The  oath  then  requires  a  pledge  of  future  loyalty  to 
the  United  States. 

Section  7  of  the  same  article  requires  every  state  officer, 
every  officer  of  a  corporation,  and  every  teacher  to  take  the 
same  oath  within  sixty  days  after  the  constitution  takes  effect ; 
and  in  default  thereof,  the  office  or  position  is  to  become  ipso 
facto  vacant. 

Section  9  of  the  same  article  declares  that  no  person  shall, 
after  the  expiration  of  sixty  days  after  the  constitution  takes 
effect,  be  permitted  to  practice  as  an  attorney  or  counsellor  at 
law  ;  "  nor  after  that  time  shall  any  person  be  competent  as  a 
bishop,  priest,  deacon,  minister,  elder,  or  other  clergyman  of 
any  religious  persuasion,  sect,  or  denomination,  to  teach,  or 


BILLS   OF   ATTAINDER.  323 

preach,  or  solemnize  marriages,  unless  such  person  shall  have 
first  taken,  subscribed,  and  filed  said  oath." 

Section  14  prescribes  certain  penalties  of  fine,  or  imprison- 
ment, or  both,  to  be  inflicted  upon  those  persons  who  shall 
hold  or  exercise  any  of  the  offices,  positions,  or  professions  des- 
ignated, without  haying  taken  the  required  oath. 

The  Reverend  Mr.  Cummings,  who  was  and  had  been  a 
priest  of  the  Romish  Church,  was  indicted,  tried,  and  con- 
victed, for  exercising  his  profession  without  having  taken  the 
oath  required.  The  highest  court  of  Missouri  having  sustained 
this  conviction,  Mr.  Cummings  brought  his  case  to  the  Su- 
preme Court  of  the  United  States  for  review.  It  was  claimed 
that  these  provisions  of  the  state  constitution  were  void,  on 
the  ground  that  they  were  bills  of  attainder  and  ex  post  facto 
laws. 

§  505.  Ex  parte  Garland:  Statement  of  facts.  —  The  second 
case  was  Ex  parte  Garland,1  being  an  application  by  Mr. 
Garland  for  permission  to  practice  in  the  Supreme  Court  of 
the  United  States  as  an  attorney  and  counsellor,  without 
taking  the  oath  required  by  a  statute  of  Congress  and  the 
rules  of  the  court.  Mr.  Garland  had  been  admitted  as  an 
attorney  and  counsellor  of  the  court  in  1860.  He  took  a  part 
in  the  rebellion,  having  been  a  member  of  the  Confederate 
Congress  from  May,  1861,  until  the  downfall  of  the  Confeder- 
acy, in  July,  1862,  Congress  passed  a  statute  requiring  all 
United  States  officers  to  take  the  folio  win  f  oath  :  "  I  do  sol- 
emnlv  swear  that  I  have  never  voluntarily  borne  arms  against 
the  United  States  since  I  have  been  a  citizen  thereof;  that  I 
have  voluntarily  given  no'  aid,  countenance,  counsel,  or  en- 
couragement to  persons  engaged  in  armed  hostility  thereto  ; 
that  I  have  neither  sought,  nor  accepted,  nor  attempted  to 
exercise  the  functions  of  any  office  whatever,  under  any  au- 
thority or  pretended  authority  in  hostility  to  the  United  States; 
that  I  have  not  yielded  a  voluntary  support  to  any  pretended 
government,  authority,  power,  or  constitution  within  the 
United  States,  hostile  or  inimical  thereto."  In  January,  1865, 
Congress  passed  a  further  statute  which  declared  that,  "  No 
1  4  Wallace's  R.  333. 


324  THE   TEST   OATH   CASES. 

person  after  the  date  of  this  act  shall  be  admitted  to  the 
bar  of  the  Supreme  Court  of  the  United  States,  or  to  the  bar 
of  any  Circuit  or  District  Court  of  the  United  States,  or  of 
the  Court  of  Claims,  as  an  attorney  or  counsellor  of  such  court, 
or  shall  be  allowed  to  appear  and  be  heard  in  such  court,  by 
virtue  of  any  previous  admission,"  without  having  first  taken 
the  oath  above  set  forth. 

In  July,  1805,  Mr.  Garland  received  from  the  President  a 
pardon,  of  which  the  operative  words  were,  that  the  President 
did  thereby  "  grant  to  the  said  A.  H.  Garland  a  full  pardon 
and  amnesty  for  all  offences  by  him  committed,  arising  from 
participation,  direct  or  implied,  in  the  said  rebellion." 

Mr.  Garland  applied  to  the  court  for  permission  to  resume 
and  continue  his  practice  at  the  bar,  without  taking  the  above- 
mentioned  oath.  He  based  his  application  on  two  grounds : 
that  the  pardon  restored  him  to  all  privileges  and  removed  all 
disabilities ;  if  not,  that  the  statute  of  Congress  requiring  the 
oath  was  void,  being  a  bill  of  attainder,  and  an  ex  i^ost  facto 
law. 

§  506.  Decision  of  the  Court.  —  Five  members  of  the  court, 
Field,  Clifford,  Nelson,  Grier,  and  Wayne,  JJ.,  held  in  the 
Cummings  case  that  the  provisions  of  the  Missouri  Constitu- 
tion, so  far  as  they  applied  to  him,  were  null  and  void,  being 
both  a  bill  of  attainder  and  an  ex  post  facto  law.  Four  judges, 
Chase,  C.  J.,  and  Swayne,  Davis,  and  Miller,  JJ.,  dissented, 
and  were  of  opinion  that  the  provisions  in  question  were 
neither  a  bill  of  attainder,  nor  an  ex  post  facto  law. 

The  same  majority  held  in  the  Garland  case,  that  the  statute 
of  Congress  was  both  a  bill  of  attainder  and  an  ex  post  facto 
law,  so  far  as  it  affected  him  and  others  in  the  same  situation, 
and  that  the  President's  pardon  relieved  him  from  all  disa- 
bilities which  could  have  attached  by  virtue  of  his  participa- 
tion in  the  rebellion. 

§  507.  Opinions  and  arguments  of  the  Court.  —  I  pass  bj  at 
present  all  portions  of  the  judgments  except  those  which  con- 
sider the  question  whether  the  legislation  under  review  came 
within  the  description  of  bills  of  attainder.  Mr.  Justice  Fieh 
delivered  the  opinion  of  the  court  in  each  case.     In  the  Cum 


BILLS   OF  ATTAINDER.  325 

tilings  case,  after  maintaining  the  proposition,  that  to  deprive  a 
person  of  an  office  or  profession,  or  to  prevent  him  from  en- 
gaging in  an  office  or  profession,  was  to  impose  a  penalty  or 
punishment  upon  him  ;  and  after  giving  the  definition  of  bills 
of  attainder  quoted  in  §  501,  he  proceeds:1  "If  the  clauses 
of  the  second  article  of  the  constitution  of  Missouri,  to  which 
we  have  referred,  had  in  terms  declared  that  Mr.  Cummings 
was  guilty,  or  should  be  held  guilty,  of  having  been  in  armed 
hostility  to  the  United  States,  or  of  having  entered  that  state 
to  avoid  being  enrolled  or  drafted  into  the  military  service  of 
the  United  States,  and,  therefore,  should  be  deprived  of  the 
right  to  preach  as  a  pi'iest  of  the  Catholic  Church,  or  to  teach 
in  any  institution  of  learning,  there  could  be  no  question  that 
the  clauses  would  constitute  a  bill  of  attainder  within  the 
meaning  of  the  Federal  Constitution.  If  these  clauses,  instead 
of  mentioning  his  name,  had  declared  that  all  priests  and  cler- 
gymen within  the  State  of  Missouri  were  guilty  of  these  acts, 
or  should  be  held  guilty  of  them,  and  hence  be  subjected  to 
the  like  deprivation,  the  clauses  would  be  equally  open  to  ob- 
jection. And  further,  if  these  clauses  had  declared  that  all 
such  priests  and  clergymen  should  be  so  held  guilty,  and  be 
thus  deprived,  provided  they  did  not,  by  a  day  designated,  do 
certain  specified  acts,  they  would  be  no  less  within  the  inhibi- 
tion of  the  Federal  Constitution.  In  all  these  cases  there 
would  be  the  legislative  enactment  creating  the  deprivation 
without  any  of  the  ordinary  forms  and  guards  provided  for  thf> 
security  of  the  citizen  in  the  administration  of  justice  by  the 
established  tribunals. 

§  508.  "  The  results  which  would  follow  from  clauses  of 
the  character  mentioned,  do  follow  from  the  clauses  actually 
adopted.  The  difference  between  the  last  case  supposed,  and 
the  case  actually  presented,  is  one  of  form  only,  and  not  of 
substance.  The  existing  clauses  presume  the  guilt  of  the 
priests  and  clergymen,  and  adjudge  the  deprivation  of  their 
right  to  preach  or  teach,  unless  the  presumption  be  first  re- 
moved by  their  expurgatory  oath  ;  —  in  other  words,  they 
assume  the  guilt  and  adjudge  the  punishment  conditionally, 
i  4  Wallace's  R.  324. 


326  THE   TEST   OATH   CASES. 

The  clauses  rupposed  differ  only  in  that  they  declare  the  guilt 
instead  of  assuming  it.  The  deprivation  is  effected  with  equal 
certainty  in  the  one  case  as  it  would  be  in  the  other,  but  not 
with  equal  directness.  The  purpose  of  the  law-maker  in  the 
supposed  case  would  be  openly  avowed  ;  in  the  case  existing, 
it  is  only  disguised.  The  legal  result  must  be  the  same,  for 
what  cannot  be  done  directly,  cannot  be  done  indirectly.  The 
Constitution  deals  with  substance,  not  shadows.  Its  inhibition 
was  levelled  at  the  thing,  not  the  name.  It  intended  that  the 
rights  of  the  citizen  should  be  secure  against  deprivation  for 
past  conduct  by  legislative  enactment,  under  any  form,  how- 
ever disguised.  If  the  inhibition  can  be  evaded  by  the  form 
of  the  enactment,  its  insertion  in  the  fundamental  law  was  a 
vain  and  futile  proceeding." 

In  the  Garland  case,  the  court  say  on  this  point,  that  the 
reasoning  employed  in  Cummings  v.  The  State  of  Missouri, 
applies  with  equal  force  there,  and  leads  to  the  same  conclu- 
sion. 

§  509.  Opinion  of  the  Minority.  —  Mr.  Justice  Miller  deliv- 
ered one  opinion  of  the  dissenting  judges,  applicable  to  both 
cases.  After  describing  bills  of  attainder  in  the  language 
already  quoted  (§  502),  he  proceeds  t1  "It  remains  to  inquire 
whether,  in  the  act  of  Congress  under  consideration  (and  the 
remarks  apply  with  equal  force  to  the  Missouri  constitution), 
there  is  found  any  one  of  these  features  of  bills  of  attainder; 
and  if  so,  whether  there  is  sufficient  in  the  act  to  bring  it  fairly 
within  the  description  of  that  class  of  bills.  It  is  not  claimed 
that  the  lawr  works  a  corruption  of  blood.  It  will,  therefore, 
be  conceded  at  once,  that  the  act  does  not  contain  this  leading 
feature  of  bills  of  attainder.  Nor  am  I  capable  of  seeing  that 
it  contains  a  conviction  or  sentence  of  any  designated  person 
or  persons.  It  is  said  that  it  is  not  necessary  to  a  bill  of  at- 
tainder that  the  party  to  be  affected  should  be  named  in  the 
act,  and  the  attainder  of  the  Earl  of  Kildare  and  his  associates 
is  referred  to  as  showing  that  the  act  was  aimed  at  a  class.  It 
is  very  true  that  bills  of  attainder  have  been  passed  against 
person6  by  some  description,  when  their  names  were  unknown. 
1  4  Wallace's  R.  389. 


BILLS   OF  ATTAINDER.  327 

But  in  such  cases  the  law  leaves  nothing  to  be  clone  to  render 
its  operation  effectual,  except  to  identify  those  persons.  Their 
guilt,  its  nature,  and  its  punishment  are  fixed  by  the  statute, 
and  only  their  personal  identity  remains  to  be  made  out.  Such 
was  the  case  alluded  to.  The  act  declared  the  guilt  and  pun- 
ishment of  the  Earl  of  Kildare,  and  all  who  were  associated 
with  him  in  his  enterprise. ;  and  all  that  was  required  to  en- 
sure their  punishment  was  to  prove  that  association.  No  per- 
son is  pointed  out  in  the  act  of  Congi-ess,  either  by  name  or  by 
description,  against  whom  it  is  to  operate.  The  oath  is  only 
required  of  those  who  propose  to  accept  an  office  or  to  practise 
law  ;  and  as  a  prerequisite  to  the  exercise  of  the  functions  of 
the  lawyer,  or  the  officer,  it  is  demanded  of  all  persons  alike.  It 
is  said  to  be  directed,  as  a  class,  to  those  alone  who  were  en- 
gaged in  the  rebellion  ;  but  this  is  manifestly  incorrect,  as  the 
oath  is  exacted  alike  from  the  loyal  and  disloyal,  under  the 
same  circumstances,  and  none  are  compelled  to  take  it.  Nei- 
ther does  the  act  declare  any  conviction  either  of  persons  or 
classes.  If  so,  who  are  they,  and  of  what  crime  are  they 
declared  to  be  guilty  ?  Nor  does  it  pronounce  any  sentence, 
or  inflict  any  punishment.  If  by  any  possibility  it  can  be  said 
to  provide  for  conviction  and  sentence,  though  not  found  in  the 
act  itself,  it  leaves  the  party  himself  to  determine  his  own 
guilt  or  innocence,  and  pronounce  his  own  sentence.  It  is 
not,  then,  the  act  of  Congress,  but  the  party  interested,  that 
tries  and  condemns.  We  shall  see,  when  we  come  to  the  dis- 
sussion  of  this  act  in  relation  to  ex  post  facto  laws,  that  it  in- 
flicts no  punishment.  A  statute,  then,  which  designates  no 
criminal,  either  by  name  or  description,  which  declares  no 
guilt,  pronounces  no  sentence,  and  inflicts  no  punishment,  can 
in  no  sense  be  called  a  bill  of  attainder." 

§  510.  It  is  certainly  proper  to  express  an  opinion  upon  the 
correctness  of  decisions  so  important  as  these.  It  can  hardly 
be  said  that  the  judgments  of  the  court  thus  rendered,  have 
established  the  doctrine  contained  in  them.  A  ruling  upon  a 
question  never  before  presented,  made  by  a  bare  majority  of 
die  judges,  is  certainly  law  for  the  parties  litigant  ;  but  neither 
in    England  nor  in    America    would    the  law    for  the   whole 


328  THE   TEST   OATH   CASES. 

country  be  considered  as  definitively  settled  by  such  an  adjudi- 
cation ;  the  question  would  still  be  treated  as  open  to  discus- 
sion. I  cannot  resist  the  conviction,  that  the  court  has  fallen 
into  a  grave  error,  and  that  the  positions  taken  by  the  dissent- 
ing judges  are  entirely  correct.  Neither  the  clauses  in  the 
Missouri  Constitution,  nor  the  act  of  Congress,  can  be  fairly 
brought  within  any  received  definition  or  description  of  bills 
of  attainder.  The  second  of  the  suppositions  made  by  Mr. 
Justice  Field,  and  quoted  in  §  507,  is  identical  in  import  with 
the  attainder  of  the  Earl  of  Kildare  and  his  followers.  In  the 
one  case  a  class  of  persons  was,  and  in  the  other  case  a  class 
would  be,  pointed  out  by  description,  and  declared  guilty  of 
crime,  and  sentenced  to  suffer  the  penalty.  In  both  cases 
each  particular  person  of  the  class  must  be  identified  ;  in  the 
one,  by  showing  that  he  was  a  follower  of  the  traitorous  noble- 
man, in  the  other,  by  showing  that  he  was  a  clergyman.  The 
third  supposition  of  the  learned  judge  is  identical  with  the 
attainder  of  the  Earl  of  Clarendon  :  the  bill  of  attainder  there 
enacted  that  the  Earl  should  be  forever  banished  ;  and  if  he 
returned  within  the  realm  after  the  first  of  February,  1667,  he 
should  suffer  the  penalties  of  treason  ;  but  if  he  surrendered 
himself  before  the  said  first  day  of  February  for  trial,  the  pen- 
alties and  disabilities  declared  should  be  void  and  of  no  effect. 
§  511.  The  attempt  to  show  that  the  provisions  of  the  Mis- 
souri Constitution,  and  of  the  act  of  Congress,  are  the  same  in 
substance  as  those  contained  in  a  conditional  attainder  like  thai 
of  Lord  Clarendon,  is  more  acute  than  successful.  The  differ- 
ence is  not  one  of  form.  In  the  conditional  attainder  the  guilt 
is  formally  declared  and  the  punishment  affixed,  which  can 
only  be  removed  by  the  performance  of  some  act.  In  the 
Missouri  Constitution  and  statute  of  Congress,  there  is  no  guilt 
declared  as  resting  upon  any  person.  To  say  that  the  clauses 
of  the  state  organic  law  presume  the  guilt  of  all  clergymen, 
and  that  the  act  of  the  national  legislature  presumes  the  guilt 
of  all  counsellors  at  law,  which  presumption  can  only  be  re- 
moved by  an  oath  of  expurgation,  is  to  say  that  the  constitu- 
tion of  Missouri  presumes  all  its  voting  citizens,  and  all  its 
state  and  local  officers  to  be  guilty  ;  in  other  words,  that  a  bill 


EX  POST  FACTO  LAAVS.  329 

of  attainder  is  launched  against  all  who  compose  the  political 
community.  The  learned  judge  who  delivered  the  opinion  of 
the  majority,  seems  to  have  confounded  the  characteristics  of 
bills  of  attainder  with  those  of  ex  post  facto  laws;  for  many  of 
his  remarks  seem  to  apply  with  greater  force  to  the  latter 
species  of  statutes.  But  the  important  feature  in  all  this  legis- 
lation, which  relieves  it  of  the  odious  character  of  bills  of  at- 
tainder, is  the  entire  absence  of  the  judicial  element.  There 
is  no  adjudication  ;  no  usurpation  of  the  functions  of  courts  ; 
no  persons  or  class  of  persons,  either  by  name  or  by  descrip- 
tion, are,  by  the  mere  force  and  operation  of  the  enactment, 
convicted  of  any  crime  existing  or  alleged.  The  provisions  of 
the  Missouri  Constitution,  and  of  the  act  of  Congress,  may  be 
of  very  doubtful  policy  ;  they  may  be  opposed  to  Republican 
ideas  ;  they  may  entirely  fail  of  their  design  ;  they  may  be 
void  as  ex  post  facto  laws  ;  but  they  clearly  are  not  bills  of 
attainder. 

II.  Ex  post  facto  Laws. 

§  512.  The  national  and  state  legislatures  are  forbidden  to 
pass  ex  post  facto  laws.  What  are  such  laws?  The  term  used 
in  its  literal  sense,  appears  to  mean  laws  after  the  fact ;  after 
the  deed  or  occurrence  to  which  they  apply.  Is  this  the  mean- 
ing of  the  phrase,  or  is  it  limited  to  a  more  special  and  techni- 
cal signification  ?  All  laws  which  directly  or  inferentially 
act  upon  matters  that  have  already  taken  place,  —  that  is, 
all  retro-active  laws,  —  strike  us  at  once  as  contrary  to  the 
ordinary  course  of  legislation,  as  impolitic,  and  unjust.  So 
strong  is  the  sentiment  of  repugnance  to  such  kind  of  legisla- 
tion, that  there  have  not  been  wanting  judges  and  courts  who 
hold  such  laws  absolutely  void  ;  who  include  them  within  the 
general  category  of  ex  p>ost  facto  laws  ;  who,  even  if  the  last 
proposition  be  not  admitted,  deny  that  any  legislatures  in  a 
free  and  Republican  country,  have  the  capacity  to  enact  such 
statutes,  which,  it  is  asserted,  contravene  the  fundamental 
principles  of  justice,  and  are  inconsistent  with  the  notion  of  a 
civil  society  based  upon  the  rights  of  man.  As  opinions  of  this 
sort  not  unfrequently  find  utterance  from  members  of  the  ba»" 


330  EX  TOST  FACTO  LAWS. 

and  of  the  bench,  I  propose  to  examine  with  some  care  the 
meaning  of  the  phrase  ex  post  facto,  and  the  powers  of  legis- 
latures to  pass  retro-active  statutes  ;  although  the  weight  of 
judicial  authority  is  so  overwhelming,  that  the  matter  is  settled 
beyond  all  dispute. 

§  513.  I  will  first  state  the  propositions  which  are  estab- 
lished. Ex  'post  facto  is  a  term  of  technical  import.  It  does 
not  include  all  legislation  operating  upon  antecedent  facts  and 
circumstances  ;  it  does  not  apply  to  civil  legislation  at  all ;  it 
has  only  reference  to  the  criminal  law.  "  Ex  post 'facto  laws  " 
must,  therefore,  ex  vi  termini,  be  criminal  laws.  They  are 
such,  and  only  such,  as  declare  an  act  criminal,  and  provide 
for  its  punishment,  which,  at  the  time  of  its  commission,  was 
not  a  crime  ;  or  such  as  change  the  punishment  of  a  known 
crime  in  any  other  manner  than  by  mitigating  it,  and  are  to 
operate  upon  past  as  well  as  future  offences  ;  or  such  as  alter 
the  rules  of  evidence  or  other  procedure,  so  that  conviction 
shall  be  made  easier,  and  are  to  apply  as  well  to  those  who 
committed  the  act  prior,  as  to  those  who  committed  it  subse- 
quently, to  the  passage  of  the  statute.  Although  legislative 
measures  which  fall  within  the  foregoing  description,  gener- 
ally provide  for  a  judicial  trial  of  the  person  charged  with 
crime,  and  affect  the  penalty  to  be  imposed  upon  him  as  the 
result  of  such  trial,  or  the  evidence  by  which  a  conviction  is 
obtained,  yet  this  is  not  necessary  ;  the  law  would  be  no  less 
ex  post  facto,  which  inflicted  the  penalty  by  its  own  direct 
operation.  All  ex  post  facto  laws  are,  therefore,  retro-active  ; 
but  all  retro -active  laws  are  not  ex  post  facto. 

§  514.  Congress  and  the  state  legislatures  do  possess  the 
power  to  adopt  and  enforce  measures  relating  to  civil  affairs, 
which  shall  havr  a  retro-active  effect,  unless  they  are  restrained 
by  some  other  pr.  visions  in  the  national  or  state  constitutions 
than  the  one  under  consideration.  There  are  several  sucl: 
provisions  ;  —  the  one  forbidding  states  to  pass  laws  impairing 
„he  obligation  of  contracts  ;  that  prohibiting  the  taking  of  pri- 
vate property  for  public  purposes  without  compensation  ;  that 
surrounding  life,  liberty,  and  property,  with  the  safeguards  of 
4  due  process  of  law,"  and  the  like.     But  all  these,  far-reach- 


EX  POST  FACTO  LAWS.  331 

ing  as  they  are,  do  not  cover  the  entire  ground  ;  there  are 
many  instances  in  which  the  legislatures  have  passed,  and  may 
still  pass,  statutes  retro-active  in  their  effect,  and  yet  not  ren- 
der themselves  obnoxious  to  any  restrictions  or  inhibitions  of 
the  organic  law  either  of  the  United  States  or  of  the  loca. 
commonwealths.  I  should  remark  in  passing,  that  most  of  the 
states  have  reenacted  the  prohibition  upon  ex  post  facto  laws 
in  their  own  constitutions,  while  a  few  have  gone  farther  and 
prevented  their  legislatures  from  passing  retro-active  statutes 
of  a  civil  nature. 

§  515.  I  shall  now  examine  the  course  of  decision  in  the 
Supreme  Court  of  the  United  States,  expository  of  this  restric- 
tive provision  ;  and  shall  then  refer  to  a  few  leading  cases  in 
the  state  courts. 

The  first  case  is  Calder  v.  Bull1  (1798).  The  facts  were 
shortly  as  follows  :  —  A  court  of  probate  in  Connecticut  had,  in 
1793,  rendered  a  decree  refusing  to  admit  a  certain  will  to 
probate  ;  the  time  for  appeal  had  expired,  and  the  rights  of 
the  parties,  so  far  as  they  could  be  established  according  to  the 
course  and  practice  of  the  courts  in  that  state,  were  fixed. 
Thereupon,  in  1795,  the  legislature  of  Connecticut  passed  a 
law  setting  aside  the  decree  of  the  probate  court,  and  ordering 
a  new  hearing.  This  having  been  had,  a  new  decree  was 
made  establishing  the  will,  which  decree  was  affirmed  by  the 
highest  court  of  the  state.  The  case  was  then  carried  to  the 
Supreme  Court  of  the  United  States,  and  the  action  of  the 
lower  courts  was  sought  to  be  reversed,  on  the  sole  ground 
that  the  state  statute  was  ex  post  facto,  and  therefore  void. 
Mr.  Justice  Chase  delivered  the  leading  opinion,  from  which 
I  quote  some  passages.  After  a  few  observations  upon  the 
power  of  any  legislative  body  in  a  free  country  to  make  laws 
manifestly  contrary  to  justice,  he  proceeds  :2  "I  shall  endeavor 
to  show  what  law  is  to  be  considered  an  ex  post  facto  law. 
The  prohibition  in  the  letter  is  not  to  pass  any  law  concerning 
and  after  the  fact ;  but  the  plain  and  obvious  meaning  and 
intention  of  the  prohibition  is  this  :  that  the  legislatures  shall 
not  pass  laws  after  a  fact  done  by  a  subject  or  citizen,  which 
1  3  Dallas's  E.  386.  3  ibid  390. 


832  EX  POST  FACTO  LAWS. 

shall  have  relation  to  such  fact,  and  shall  punish  him  for  having 
done  it.  The  prohibition,  considered  in  this  light,  is  an  addi- 
tional bulwark  in  favor  of  the  personal  security  of  the  subject 
to  protect  his  person  from  punishment  by  legislative  acts  hav- 
ing a  retro-active  operation.  I  do  not  think  it  was  intended 
to  secure  the  citizen  in  his  private  rights  of  either  property  or 
contract.  I  will  state  what  laws  I  consider  ex  post  facto, 
within  the  words  and  intent  of  the  prohibition. 

§  516.  "  (1.)  Every  law  that  makes  an  action  done  before 
the  passage  of  the  law,  and  which  was  innocent  when  done, 
criminal,  and  punishes  such  action  : 

"  (2.)  Every  law  that  aggravates  a  crime,  or  makes  it 
greater  than  it  was  when  committed  : 

"  (3.)  Every  law  that  changes  the  punishment,  and  ji diets 
a  greater  punishment  than  the  law  annexed  to  the  crime  when 
committed  : 

"  (4.)  Every  law  that  alters  the  legal  rules  of  evidence, 
and  receives  less  or  different  testimony  than  the  law  required 
at  the  time  of  the  commission  of  the  offence,  in  order  to  con- 
vict the  offender.  These  and  similar  laws  are  manifestly  un- 
just and  oppressive.  In  my  opinion  the  true  distinction  is, 
between  ex  post  facto  laws  and  retrospective  laws.  Every 
ex  post  facto  law  must  necessarily  be  retrospective  ;  but  every 
retrospective  law  is  not  ex  post  facto.  The  former  only  are 
prohibited.  Every  law  that  takes  away  or  impairs  rights 
vested  agreeably  to  existing  laws,  is  retrospective,  and  is  gen- 
erally unjust,  and  may  be  oppressive;  and  it  is  a  good  general 
rule  that  a  law  should  have  no  retrospect.  But  I  do  not  con- 
sider any  law  ex  post  facto,  within  the  prohibition,  that  mol- 
lifies the  rigor  of  the  criminal  law,  but  only  those  that  create 
or  aggravate  the  crime,  or  increase  the  punishment,  or  change 
the  rule  of  evidence  for  the  purpose  of  conviction.  There  is 
a  great  and  apparent  difference  between  making  an  unlawful 
act  lawful,  and  the  making  an  innocent  act  criminal  and  pun- 
ishing it  as  a  crime."  Patterson  and  Iredell,  JJ.,  delivered 
•pinions  to  the  same  effect.  The  statute  of  the  Connecticut 
egislature  was  therefore  sustained. 


EX  POST  FACTO  LAWS.  333 

§  517.  In  the  case  of  Fletcher  v.  Peck  *  (1810),  Chief 
Justice  Marshall  had  occasion  to  remark  upon  the  meaning  of 
the  phrase.  The  facts  of  the  case  are  complicated,  and  will  be 
referred  to  in  another  portion  of  this  section.  The  Chief  Jus- 
tice says  :  2  "An  ex  post  facto  law  is  one  which  renders  an  act 
punishable  in  a  manner  in  which  it  was  not  punishable  when 
it  was  committed.  Such  a  law  may  inflict  penalties  on  the 
person,  or  may  inflict  pecuniary  penalties  which  swell  the 
public  treasury.  The  legislature  is,  then,  prohibited  from 
passing  a  law  by  which  a  man's  estate,  or  any  part  of  it,  shall 
be  seized  for  a  crime  which  was  not  declared  by  some  previous 
law  to  render  him  liable  to  that  punishment."  This  definition 
of  Chief  Justice  Marshall  has  been  spoken  of  by  subsequent 
writers  and  judges  as  wonderfully  clear,  comprehensive,  and 
accurate. 

§  513.  In  Watson  v.  Mercer3  (1834),  Mr.  Justice  Story 
says  :  4  "It  is  clear  that  this  court  has  no  right  to  pronounce 
an  act  of  the  state  legislature  void,  as  contrary  to  the  Consti- 
tution of  the  United  States,  from  the  mere  fact  that  it  divests 
antecedent  rights  of  property.  The  Constitution  of  the 
United  States  does  not  prohibit  the  states  from  passing  retro- 
spective laws  generally  ;  but  only  ex  post  facto  laws.  Now  it 
has  been  solemnly  settled  by  this  court,  that  the  phrase,  ex 
post  facto  laws,  is  not  applicable  to  civil  laws,  but  to  penal 
and  criminal  laws  which  punish  a  party  for  acts  antecedently 
done,  that  were  not  punishable  at  all,  or  not  punishable  to  the 
extent  or  in  the  manner  described.  In  short,  ex  post  facto 
laws  relate  to  penal  and  criminal  proceedings  which  impose 
punishments  or  forfeitures,  and  not  to  civil  proceedings  which 
affect  private  rights  retrospectively." 

The  same  doctrine  was  reaffirmed  in  Carpenter  v.  Pennsyl- 
vania,5 decided  in  1854.  The  examination  of  the  recent  and 
.nost  important  Test  Oath  Cases  is  postponed  to  the  close  of 
this  subsection. 

§  519.  The  current  of  decision  in  the  highest  national  tri- 
bunal being  thus  uniform,  I  turn  to  a  few  leading  cases  in  the 

l  6  Cranch's  R.  87.  2  Ibid.  138.  3  8  Peters'  R.  88. 

4  Ibid.  109.  5  n  Howard's  R.  4&* 


534  EX  POST  FACTO  LAWS. 

state  courts.  In  Lord  v.  Chadbourne  1  (Maine,  1856),  Ap- 
pleton,  J.,  delivering  the  opinion  of  the  court,  said  :  "  The 
legislature  may  pass  laws  altering,  or  modifying,  or  even  tak- 
ing away,  remedies  for  the  recovery  of  debts,  without  incurring 
a  violation  of  the  provisions  of  the  Constitution  which  forbid 
the  passage  of  ex  pod  facia  laws."  In  the  same  state,  the 
subsequent  case  of  Coffin  v.  Rich2  contains  observations  made 
by  Davis,  J.,  which  need  criticism.  He  says  :3  "There  can 
be  no  doubt  the  legislatures  have  the  power  to  pass  retrospec- 
tive statutes,  if  they  affect  remedies  only.  Such  is  the  well- 
settled  law  of  this  state.  But  they  have  no  constitutional 
power  to  enact  retrospective  laws  which  impair  vested  rights, 
or  create  personal  liabilities.  This  subject  was  elaborately 
discussed  by  Mellen,  C.  J.,  in  the  case  of  the  Kennebec  Pur- 
chase v.  Laboree,4  and  it  was  there  held  that  the  Constitution 
secures  citizens  against  the  retro-active  effect  of  legislation 
upon  their  property.  And  in  regard  to  the  question  what  is  a 
retro-active  law  thus  unconstitutional,  the  court  adopted  the 
definition  of  Judge  Story,  —  a  statute  which  creates  a  new 
obligation,  or  imposes  a  new  duty."  Turning  to  this  case  of 
Kennebec  Purchase  v.  Laboree,4  we  shall  find  that  it  was  de- 
cided upon  provisions  in  the  Constitution  of  Maine  similar  in 
words  and  import  to  those  in  the  organic  law  of  the  Union, 
forbidding  a  person  to  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law,  and  that  it  had  no  relation  what- 
ever to  the  clause  concerning  ex  post  facto  laws.  The  facts 
of  the  case  show  that  it  called  in  question  a  statute  which 
operated  directly  to  transfer  the  lands  of  one  person  to  another 
owner.  The  decision  is  in  strict  accordance  with  all  true  con 
stitutional  interpretation,  but  is  no  authority  for  the  position 
that  state  legislatures  are  restricted,  beyond  the  provisions  of 
their  own,  or  the  national,  constitution,  from  passing  laws 
which  affect  civil  rights  alone,  and  which  are  retro-active.5 

§  520.  In  New  Hampshire  the  analogous  clause  in  the  Con- 
stitution is  peculiar.     It  is   as   follows :    "  Retrospective  laws 

i  2  Adams's  (42  Me.)  R.  429.  2  1   Hubbard's  (45  Me.)  R.  507 

3  1  Hubbard's  (45  Me.)  R.  514.  *  2  Greenleaf's  R.  275. 

6  See  Opinion  of  Mellen,  C.  J.,  2  Grepnleaf  's  R.  288-294. 


EX  POST  FACTO   LAWS.  335 

are  highly  injurious,  oppressive,  and  unjust.  No  such  laws, 
therefore,  should  be  made,  either  for  the  decision  of  civil  causes, 
or  the  punishment  of  offences."  This  language  is  certainly 
untechnical,  and  somewhat  obscure  ;  but  it  is  far  broader  than 
that  of  the  United  States  Constitution.  The  Supreme  Court 
of  the  state  have  had  frequent  occasions  to  give  it  a  construc- 
tion ;  and  I  will  briefly  refer  to  the  most  important  cases.  In 
Woart  v.  Winnick  ]  (1826),  the  court  determined  that  an  act 
of  the  state  legislature  repealing  a  prior  statute  of  limitations, 
was  void  as  respects  all  actions  pending  at  the  time  of  the  re- 
peal, in  which  the  cause  of  action  was  destroyed  or  barred  by 
that  statute.  Plainly,  such  repealing  act  was  not  ex  post 
facto ;  and  this  the  court  concede,  placing  their  judgment 
entirely  upon  the  other  branch  of  the  constitutional  provision 
which  forbids  retrospective  laws  "  for  the  decision  of  civil 
causes." 

In  Rich  v.  Flanders  2  (1859),  the  question  was  again  pre- 
sented to  the  Supreme  Court  of  New  Hampshire,  and  exam- 
ined with  great  learning  and  ability.  The  statute  under  re- 
view  was  one  changing  the  long-established  rules  of  evidence, 
and  admitting  the  parties  to  suits  to  testify  in  their  own  be- 
half. The  point  for  decision  was  as  to  the  constitutionality  of 
this  act  when  applied  to  causes  of  action  which  had  accrued, 
and  rights  which  had  become  vested,  prior  to  its  passage.  The 
opinion  was  delivered  by  Mr.  Justice  Sargent.  After  deter- 
mining that  the  law  was  not  ex  post  facto,  he  proceeds  to  ex- 
amine the  meaning  of  "  retrospective  laws,"  as  the  term  is 
used  in  the  Constitution.  Remarking  that  "  ex  post  facto  " 
has  received  a  distinct  technical  signification  ;  that  it  is  con- 
fined to  criminal  legislation,  and  even  to  such  particular  meas- 
ures as  retro-act  to  the  injury  of  a  person  accused,  to  such  as 
make  an  act  a  crime  which  was  innocent,  or  increase  its  pun- 
ishment, or  render  conviction  easier,  —  he  proceeds  t<>  Inquire 
whether  "  retrospective  laws  "  have  not  also  a  defined  techni- 
cal meaning.  Do  they  include  all  statutes  relating  to  civil 
matters  which  retro-act  ?  They  do  not.  They  do  not  embrace 
such  legislative   measures  as  affect   the  remedy  alone.     Mr. 

1  3  New  Hampw  R.  473.  2  2  Chandler's  (39  N.  H.)  R.  304. 


336  EX   POST   FACTO  LAWS. 

Justice  Sargent  cites  the  case  of  De  Cordova  v.  Galveston,1 
from  Texas,  and  the  cases  of  Hope  v.  Johnson,2  Vanzant  v. 
Waddell,3  and  Brandon  v.  Green,4  from  Tennessee,  in  which 
the  same  construction  was  given  to  identical  clauses  in  the 
constitutions  of  those  states.  Me  thus  concludes  the  di 
sion  :  5  "We  deduce  from  all  the  decisions  upon  the  subject 
this  rule  :  that  any  statute  which  changes  or  affects  the  rem- 
edy merely,  and  does  not  destroy  or  impair  any  vested  right, 
—  which  does  not  destroy  any  existing  right  of  action  or  de- 
fence, or  create  any  new  ground  of  action  or  defence,  is  not  a 
retrospective  law  in  the  sense  in  which  such  laws  are  prohib- 
ited by  the  Constitution,  though  acting  upon  past  contracts  and 
rights  previously  acquired  and  vested,  even  though  in  chang- 
ing or  affecting  the  remedy  the  rights  of  parties  may  be  inci- 
dentally affected  thereby."  The  court  holds  that  rules  of 
evidence  are  part  of  the  remedy  ;  that  when  a  person  enters 
into  a  relation  from  which  a  right  or  obligation  may  spring,  he 
has  no  vested  right  that  the  rules  of  evidence  then  existing, 
applicable  to  the  establishment  of  his  relation,  shall  remain  the 
same  when  the  right  or  obligation  is  sought  to  be  judicially  en- 
forced. The  whole  reasoning  of  this  opinion  will  be  found 
instructive  in  connection  with  the  kindred  subject  of  laws  im- 
pairing the  obligation  of  a  contract.  |{  -C 

§  521.  In  The  State  v.  Paul6  (1858),  the  Supreme  Court 
of  Rhode  Island  was  called  upon  to  examine  a  statute  prohib- 
iting the  sale  of  spirituous  liquors.  Ames,  C.  J.,  says  :7  "  The 
statute  in  question  is  supposed  to  be  an  ex  post  facto  law,  be- 
cause, although  it  does  not  in  terms  punish  one  for  having 
sold  or  kept  liquor  for  sale  before  the  passage  of  the  act,  yet  it 
absolutely  prohibits  manufacturers  and  others  from  selling,  or 
keeping  for  sale  within  the  state,  liquors  manufactured  or 
bought  by  them  previous  to  the  passage  of  the  act.  It  is  obvi- 
ous that  this  objection  proceeds  either  upon  a  misconstruction 
of  the  statute  in  question,  or  upon  a  misunderstanding  of  the 
constitutional  meaning  of  an  ex  post  facto  law.     The  statute, 

l  4  Texas  R.  470.  *  2  Yerger's  R.  125.  3  Ibid.  260. 

4  7  Humphrey's  R.  130.  5  2  Chandler's  R.  322. 

«  2  Ames's  (5  R.  I.)  R.  185.      7  Ibid.  190. 


EX   POST   FACTO   LAWS.  337 

it  is  admitted,  does  not  in  words  punish  that  as  an  offence 
which  was  not  such  before  its  passage.  That  it  docs  in  effect 
prohibit  manufacturers  and  others  who  have  manufactured  or 
bought  liquor  before  the  passage  of  the  act,  from  selling  it  or 
keeping  it  for  sale  within  the  state  afterwards,  and  thus  a  Herts 
injuriously  to  them  the  value  of  such  property  on  their  hands, 
does  not  make  it  an  ex  post  facto  law  in  the  constitutional 
sense.  To  meet  the  well-settled  definition  of  such  a  law,  a 
statute  must  not  only  retro-act,  but  must  retro-act  by  way  of 
criminal  punishment  upon  that  which  was  not  a  crime  before 
its  passage." 

§  522.  Perhaps  the  most  interesting,  and,  in  many  respects, 
most  extraordinary  case  which  has  arisen,  involving  the  mean- 
ing and  effect  of  the  clause  which  prohibits  ex  post  facto  laws, 
is  Mary  Hartung  v.  The  People  1  (1860).  The  facts  were  as 
follows :  Mrs.  Hartung  was  indicted,  tried,  convicted,  and 
sentenced  to  be  hung  for  the  murder  of  her  husband,  who  died 
in  1858.  The  judgment  was  affirmed  by  the  Supreme  Court, 
January  9th,  1860.  The  prisoner  immediately  carried  the 
case  to  the  Court  of  Appeals  for  review.  At  the  time  of  the 
offence,  trial,  conviction,  and  affirmance  by  the  Supreme  Court, 
the  provisions  of  the  Revised  Statutes  controlled  the  case,  which 
defined  the  crime  of  murder,  and  declared  that,  upon  convic- 
tion thereof,  the  prisoner  should  be  sentenced  to  death  by  the 
court  trying  him,  which  sentence  should  be  carried  into  effect 
within  certain  definite  and  short  limits  of  time.  After  the 
affirmance  by  the  Supreme  Court,  and  before  the  argument  in 
the  Court  of  Appeals,  the  legislature  passed  a  statute  which  in 
terms  repealed  all  former  laws  relating  to  the  crime  of  murder 
and  to  the  punishment  thereof,  with  no  saving  clause  excepting 
offences  already  committed  but  not  as  yet  punished.  This  new 
statute  defined  the  crime  of  murder,  and  established  the  punish- 
ment, as  follows  :  That  the  person  convicted  should  be  eon- 
fined  for  at  least  one  year  in  the  state  prison,  and  after  the 
expiration  of  the  year  should  suffer  death  by  hanging  whenever 
\he  governor  of  the  state  should  issue  his  warrant  for  that  pur- 
pose.    This  being  the   law  of  the  state  when  the   case  was 

1  8  Smith's  (22  N.  Y.)  K.  95. 
22 


838  EX   POST   FACTO   LAWS. 

argued  before  the  Court  of  Appeals,  the  counsel  for  the  prisoner 
urged  that  this  woman  could  not  be  punished  at  all  ;  that  the 
statute  under  which  she  was  convicted  had  been  abrogated  ; 
that  the  new  enactment  could  not  be  applied  to  her  case,  for  to 
do  so  would  make  it  ex  post  facto. 

§  52-3.  After  disposing  of  the  first  point,  and  holding  that, 
there  being  no  reservation,  the  prisoner  could  not  be  punished 
under  the  original  statute,  but  must  be,  if  at  all,  under  the  new 
one,  Denio,  J.,  who  gave  the  opinion  of  the  court,  proceeds  :  1 
"And  this  leads  me  to  the  second  question  to  be  considered, 
whether  it  is  competent  for  the  legislature,  after  the  conviction 
of  a  person  prosecuted  for  murder,  to  change  the  punishment 
which  the  law  has  annexed  to  the  offence,  for  another  and  dif- 
ferent punishment,  as  was  attempted  to  be  done  in  this  case. 
It  is  highly  probable  that  it  was  the  intention  of  the  legislature 
to  extend  favor,  rather  than  increased  severity,  towards  this 
convict  and  others  in  her  situation  ;  and  it  is  quite  likely  that, 
had  they  been  consulted,  they  would  have  preferred  the  appli- 
cation of  this  law  to  their  cases,  rather  than  that  which  existed 
when  they  committed  the  offences  of  which  they  were  con- 
victed. But  the  case  cannot  be  determined  upon  such  consid- 
erations. No  one  can  be  criminally  punished  in  this  country, 
except  by  a  law  prescribed  for  his  government  by  the  sover- 
eign authority  before  the  imputed  offence  was  committed,  and 
which  existed  as  a  law  at  the  time.  It  would  be  useless  to 
speculate  upon  the  question  whether  this  would  be  so  upon  the 
reason  of  the  thing,  and  according  to  the  spirit  of  our  legal 
institutions  ;  because  the  rule  exists  in  the  form  of  an  express 
written  precept,  the  binding  force  of  which  no  one  disputes. 
No  state  shall  pass  any  ex  post  facto  law,  is  the  mandate  of  the 
Constitution  of  the  United  States.  The  present  question  rs, 
whether  the  provision  under  immediate  consideration  is  such  a 
law  within  the  meaning  of  the  Constitution.  I  am  of  opinion 
that  it  is.  The  substituted  punishment  is  made  applicable  to 
offences  committed  under  the  old  law,  where  convictions  have 
already  been  had.  To  abolish  the  penalty  which  the  law  at- 
tached to  a  crime  when  it  was  committed,  and  to  declare  it  tc 
l  8  Smith's  R.  103. 


EX  POST  FACTO  LAWS.  839 

be  punishable  in  another  way,  is,  as  respects  the  new  punish- 
ment, the  essence  of  an  ex  post  facto  law." 

§  524.  The  learned  judge  then  quotes  the  language  of  Mar- 
shall, C  J.,  in  Fletcher  v.  Peck,  and  of  Chase,  J.,  in  ('alder  v. 
Bull,  and  proceeds:  "Neither  of  the  cases  in  which  these  re- 
marks were  made,  involved  any  question  as  to  the  kind  or 
degree  of  change  in  the  punishment  of  an  offence  already  com- 
mitted, which  might  be  made  without  a  violation  of  the  Consti- 
tution. A  rule  upon  that  subject  is  now  to  be  laid  down  for 
the  first  time.  In  my  opinion,  then,  it  would  be  perfectly 
competent  for  the  legislature,  by  a  general  law,  to  remit  any 
separable  portion  of  the  prescribed  punishment.  For  instance, 
if  the  punishment  were  fine  and  imprisonment,  a  law  which 
should  dispense  with  either  the  fine  or  the  imprisonment  might 
be  lawfully  applied  to  existing  offences  ;  and  so,  in  my  opinion, 
the  term  of  the  imprisonment  might  be  reduced,  or  the  number 
of  stripes  diminished  in  cases  punishable  in  that  manner.  Any- 
thing which,  if  applied  to  an  individual  sentence,  would  fairly 
fall  within  the  idea  of  a  remission  of  a  part  of  the  sentence, 
would  not  be  liable  to  objection.  And  any  change  which  should 
be  referable  to  prison  discipline  or  penal  administration,  as  its 
primary  object,  might  also  be  made  to  take  effect  upon  past  as 
well  as  future  offences,  —  as  changes  in  the  manner  or  kind  of 
employment  of  convicts  sentenced  to  hard  labor,  the  system  of 
supervision,  the  means  of  restraint,  and  the  like.  Changes 
of  this  sort  would  operate  to  increase  or  to  mitigate  the  sever- 
ity of  the  punishment  of  the  convict,  but  would  not  raise  any 
question  under  the  constitutional  provision  we  are  considering. 
The  change  wrought  by  the  act  of  1860  in  the  punishment  of 
existing  offences  of  murder,  does  not  fall  within  either  of  these 
exceptions.  If  it  is  to  be  construed  to  vest  in  the  governor  a 
discretion  to  determine  whether  the  convict  should  be  executed, 
or  remain  a  perpetual  prisoner  at  hard  labor,  this  would  only  be 
equivalent  to  what  he  might  do  under  the  authority  to  com- 
mute a  sentence.  But  he  can,  under  the  Constitution,  only  do 
Jiis  once  for  all.  If  he  refuses  the  pardon,  the  convict  is  exe- 
tuted  according  to  the  sentence.  If  he  grants  it,  the  jurisdic- 
tion of  the  case  ends.     The  act  in  question  places  the  convict 


340  THE   TEST   OATH   CASES. 

at  the  mercy  of  the  governor  in  office  at  the  expiration  of  one 
year  from  the  time  of  his  conviction,  and  of  all  his  successors 
during  the  lifetime  of  the  convict,  lie  may  be  ordered  to  ex 
ecution  at  any  time,  upon  any  notice,  or  without  notice.  The 
sword  is  indefinitely  suspended  over  his  head,  ready  to  fall  at 
any  moment.  It  is  not  enough  to  say,  even  if  that  can  be 
said,  that  most  persons  would  probably  prefer  such  a  fate  to 
the  former  capital  sentence.  It  is  enough  to  bring  the  law 
within  the  condemnation  of  the  Constitution,  that  it  changes 
the  punishment  after  the  commission  of  the  offence,  by  substi- 
tuting fur  the  prescribed  penalty  a  different  one.  We  have  no 
means  of  saying  whether  or  not  the  other  would  be  the  most 
severe  in  a  given  case.  That  would  depend  upon  the  tem- 
perament and  disposition  of  the  convict.  The  legislature  can- 
not thus  experiment  upon  the  criminal  law.  This  law,  more- 
over, prescribes  one  year's  imprisonment  at  hard  labor  in  a 
state  prison,  in  addition  to  the  punishment  of  death.  As  the 
convict  is,  consequently,  under  this  law,  exposed  to  the  double 
infliction,  it  is,  within  both  the  definitions  which  have  been 
mentioned,  an  ex  post  facto  law.  It  changes  the  punishment, 
and  inflicts  a  greater  punishment  than  that  which  the  law  an- 
nexed to  the  crime  when  committed."  The  court  unanimously 
held  the  statute  void  as  to  past  offences  ;  so  that,  the  old  law 
having  been  repealed  with  no  saving  of  cases  already  arisen, 
such  crimes  were  absolutely  unpunishable  in  New  York,  and 
several  murderers  escaped  all  penalty  and  were  discharged,  — 
a  striking  illustration  of  the  heedlessness  and  ignorance  which 
characterize  so  much  of  modern  legislation. 

§  525.  TJie  Test  Oath  Cases.  —  The  citations  already  made 
are  enough  to  show  the  very  general  uniformity  in  the  con- 
struction which  the  national  and  state  courts  have  placed  upon 
the  clause  of  the  Constitution  forbidding  ex  post  facto  laws. 
I  shall,  therefore,  conclude  this  subject  with  an  examination 
of  the  recent  Test  Oath  cases,  Cummings  v.  Missouri,1  and 
Ex  parte  Garland.2  The  facts  of  these  cases  have  been  already 
stated  with  sufficient  fulness  in  §§  504,  505.  On  the  argu- 
ment it  was  urged  in  support  of  the  Missouri  constitution,  and 
i  4  Wallace's  R.  277.  2  Ibid.  333. 


EX  POST   FACTO   LAWS.  341 

of  the  law  of  Congress,  that  these  several  enactments  were 
within  the  competency  of  the  bodies  which  adopted  them  :  that 
Congress  has  power  to  prescribe  the  qualifications  which  must 
be  possessed  by  persons  practising  at  the  bar  of  the  national 
courts;  that  the  states  have  the  like  power  to  prescribe  the 
qualifications  which  must  be  possessed  by  persons  exercising 
any  avocation  within  their  territorial  limits  ;  that  the  legisla- 
tive provisions  in  question  were  adopted  under  and  by  virtue 
of  this  power  ;  that  the  forbidding  a  person  to  exercise  any 
profession  or  calling  unless  he  shall  comply  with  certain  condi- 
tions, is  not  in  any  legal  sense  a  punishment  or  penalty  ;  that 
the  act  of  Congress,  and  the  constitution  of  Missouri  do  not, 
therefore,  fall  within  any  received  definition  of  ex  post  facto 
laws. 

§  526.  Opinion  of  the  Cour't. —  The  opinions  pronounced  by 
the  majority,  and  by  the  minority,  are  too  long  to  be  quoted  in 
full,  and  I  shall  simply  give  an  abstract  of  the  reasoning  which 
led  the  court,  and  the  dissenting  judges,  to  the  conclusions 
which  they  respectively  reached.  The  positions  taken  by  Mr. 
Justice  Field,  who  delivered  the  prevailing  opinion  in  both 
cases,  are  as  follows  :  He  admits  that  Congress  has  general 
authority  to  prescribe  the  qualifications  which  must  be  pos- 
sessed by  all  persons  practising  at  the  bar  of  the  national 
courts  ;  and  that  the  states  have  a  like  authority  to  prescribe 
the  qualifications  which  must  be  possessed  by  those  who  exer- 
cise the  various  professions  and  callings  within  their  territorial 
limits.  He  qualifies  this  admission  by  asserting  in  the  Cum- 
mings'  case,  that  "  it  by  no  means  follows  that,  under  the  form 
of  creating  a  qualification  or  attaching  a  condition,  the  states 
can  in  effect  inflict  a  punishment  for  a  past  act  which  was  not 
punishable  at  the  time  it  was  committed.  The  question  is  not 
as  to  the  existence  of  the  power  of  the  state  over  matters  of 
internal  police,  but  whether  that  power  has  been  made,  in  the 
present  case,  an  instrument  for  the  infliction  of  punishment 
against  the  inhibition  of  the  Constitution."  1  Again,  in  the 
Garland  case,  he  says:2  "The  legislature  may  undoubtedly 
prescribe  qualifications  for  the  office  [of  attorney  and  counsel- 
i  4  Wallace's  R.  319.  2  Ibid.  379. 


B42  THE   TEST   OATH   CASES. 

lor],  to  which  he  must  conform,  as  it  may,  when  it  has  exclu- 
sive jurisdiction,  prescribe  qualifications  for  the  pursuit  of  any 
of  the  ordinary  avocations  of  life.  The  question  in  tins  case 
is,  not  as  to  the  power  of  Congress  to  prescribe  qualifications 
but  whether  that  power  lias  been  exercised  as  a  means  for  the 
infliction  of  punishment  against  the  prohibition  of  the  Consti- 
tution." In  these  passages  is  to  be  found  the  key  to  the  judg- 
ment of  the  court. 

§  ~>27.  The  nature  of  the  "qualifications  "  which  a  legisla- 
ture mav  impose  as  a  condition  to  the  exercise  of  any  pursuit 
or  profession,  is  next  examined  ;  and  the  several  requirements 
demanded  by  the  Missouri  constitution  as  a  prerequisite  to  the 
discharge  of  a  clergyman's  duties,  are  declared  to  have  no 
connection  whatever  with  a  person's  fitness  for  that  sacred 
office,  and  to  be  in  no  sense  "  qualifications."  The  question 
is  then  considered  at  length  whether  these  various  statutory 
provisions  impose  a  punishment.  Many  of  the  acts  referred  to 
in  the  Missouri  constitution,  and  in  the  statute  of  Congress, 
were  not,  at  the  time  when  committed,  crimes  of  any  descrip- 
tion ;  others  were  offences  of  a  very  high,  perhaps  of  the  high- 
est, grade  ;  but  to  none  of  them  had  the  punishment  of 
disqualification  from  pursuing  any  particular  profession  or 
business,  been  made  applicable.  A  statute  or  constitution 
which  prohibits  all  persons  from  exercising  the  profession  of  a 
clergyman  or  of  a  lawyer  if  they  have  done  certain  specified 
acts  regarded  as  criminal,  and  which  requires  all  persons  in- 
tending to  commence  or  to  continue  the  exercise  of  such  pro- 
fessions to  take  an  expurgatory  oath,  assumes  the  guilt  of  those 
individuals  who  neglect  or  refuse  to  take  the  oath  ;  and  the 
prohibition  resting  upon  them  under  thes<>  circiunstanc 
therefore,  a  punishment  or  penalty  imposed  0:1  account  of  their 
issumed  commission  of  the  specified  offences,  because  it  re- 
stricts the  freedom  of  the  individual,  and  deprives  him  of  the 
means  of  acquiring  property.  The  statute  of  Congress  de- 
manding a  test  oath  from  lawvers,  and  the  clauses  of  the  Mis- 
?ouri  constitution  requiring  a  test  oath  from  clergymen,  are, 
therefore,  ex  post  facto  laws,  and  void. 

§  528.    Opinion  of  the  Minority.  —  The  opinion   of  the  dis- 


EX  POST  FACTO   LAWS.  318 

senting  judges,  delivered  by  Mr.  Justice  Miller,  maintains  the 
following  positions  :  That  the  legislatures,  national  and  state, 
have,  within  their  respective  jurisdictions,  complete  authority 
over  the  various  professions  and  avocations,  and  over  the  quali- 
fications demanded  from  persons  engaging  in  the  same  ;  that 
the  status  of  the  lawyer  or  of  the  clergyman  is  not  a  legal  right, 
but  only  a  privilege  conferred  by  the  legislature  under  such 
conditions  as  it  shall  deem  proper  ;  that  a  statute  prohibiting  a 
person  from  entering  the  legal  or  clerical  profession,  or  from 
continuing  to  exercise  the  functions  of  a  lawyer  or  a  clergyman, 
does  not  inflict  any  penalty  or  punishment,  because  it  does  not 
deprive  the  individual  of  a  legal  right,  but  only  affects  a  per- 
sonal privilege  which  is  completely  under  the  control  of  the 
law-maker.  The  conclusion  is  thus  reached,  that  the  clauses 
of  the  Missouri  constitution,  and  the  statute  of  Congress,  are 
not  ex  i^ost  facto  laws,  because  they  neither  in  terms  declare 
any  acts  to  be  crimes  and  impose  a  punishment,  nor  do  they 
indirectly  inflict  a  penalty,  forfeiture,  or  punishment,  but  they 
are  confined  to  matters  of  a  purely  civil  nature,  to  the  qualifi- 
cations requisite  for  entering  upon,  and  pursuing,  certain 
trades,  professions,  and  callings. 

§  529.  It  is  certainly  proper  to  examine  these  two  opinions 
which  are  thus  opposed  to  each  other  in  every  particular,  and 
to  ascertain,  if  possible,  the  rules  of  constitutional  construc- 
tion which  shall  reconcile  them,  and  place  the  judgment  of 
the  court  upon  a  correct  basis.  The  national  and  state  legis- 
lation directly  or  inferentially  affected  by  these  cases,  is  ex- 
tensive and  most  important  ;  it  covers  the  qualifications  of 
officeholders  and  of  voters  ;  and  it  cannot  be  said  that  all  the 
puestions  which  may  arise  therefrom  have  been  put  to  rest  by 
this  single  determination  of  the  Supreme  Court. 

The  actual  judgments  rendered  in  the  Cummings  and  Gar- 
land cases,  upon  the  facts  therein  contained,  were  correct.  It 
seems  to  me  clear  that  the  Missouri  constitution  on  the  one 
hand,  and  the  law  of  Congress  on  the  other,  deprived  those 
persons  of  legal  rights  which  had  been  acquired  by,  and  vested 
in,  them  under  the  preexisting  law  ;  that  such  deprivation  was 
I  consequence   of   criminal   acts   which    Cummings  and   Gar- 


3-14  THE   TEST   OATH   CASES. 

land  had  dune,  and  was,  therefore,  a  forfeiture  or  penalty  im- 
posed upon  them  on  account  of  their  offences  ;  and,  finally, 
that  as  the  acts  when  done  were  not  thus  punishable,  the  legis- 
lation, so  far  as  it  affected  these  individuals  and  others  simi- 
larly situated,  came  within  the  definition  of  ex  j^ost  facto  laws, 
and  was  void. 

§  530.  While  agreeing  with  the  very  conclusion  and  i'ud^- 
ment  of  the  court  in  these  cases,  I  cannot  accept  to  its  full 
extent  the  reasoning  either  of  the  majority  or  of  the  dissent- 
ing judges.  Both  Mr.  Justice  Field  and  Mr.  Justice  Miller 
failed  in  one  most  important  function  belonging  to  the  judicial 
office,  —  that  of  deciding  upon  the  facts,  and  upon  the  facts 
alone,  as  they  are  presented  in  the  case  before  the  court. 
What  were  these  facts?  They  were  few  and  simple.  Cum- 
mings  had  entered  the  clerical  profession,  and  was  performing 
the  duties  of  his  office,  according  to  the  law  of  Missouri  as  it 
existed  prior  to  the  adoption  of  the  new  constitution  in  1865. 
Garland  had  been  admitted  to  the  bar  of  the  Supreme  Court 
of  the  United  States  by  virtue  of  regulations  which  were  in 
operation  and  sanctioned  by  Congress  before  the  civil  war 
broke  out.  The  legislation  virtually  said  to  these  men  :  You 
shall  not  hereafter  pursue  your  professions,  because  you  have 
committed  criminal  acts.  Here  was  a  plain  deprivation  of  a 
vested  right,  a  right  conferred  by  preexisting  law,  a  right 
legal  in  its  nature,  and  having  a  pecuniary  value  as  property. 
This  deprivation  can  be  considered  as  nothing  else  than  a  pen- 
alty, forfeiture,  or  punishment. 

§  531.  Such  were  the  facts  involved  in  these  cases ;  and 
the  rule  of  law  applicable  to  them  would  seem  to  be  simple 
and  clear.  But  neither  the  court  nor  the  dissenting  judges 
were  content  to  confine  themselves  to  these  facts,  or  to  the 
legal  principles  governing  them  and  determining  the  rights  of 
the  litigant  parties.  The  prevailing  opinion  embraces  within 
its  reasoning  and  its  conclusions,  not  only  lawyers  and  clergy- 
men already  admitted  to  their  professions,  and  thus  clothed 
with  a  peculiar  status,  but  also  all  persons  seeking  admission. 
It  not  only  pronounces  the  destruction  of  an  existing  right  of 
membership  in  a  particular  trade  or  business  to  be  a  punish- 


EX  POST  FACTO  LAWS.  345 

inent,  but  also  asserts  that  disqualification  to  enter  upon  such 
calling  is  no  less  a  penalty.  It  not  only  declares  that  lawyers 
and  clergymen  have  a  legal  right  to  continue  in  their  profes- 
sions, but  also  maintains  that  all  persons  have  a  legal  right  to 
be  admitted  thereto,  and  that  a  statute  abridging  "such  right  in- 
capacity, on  account  of  some  prior  offence,  imposes  a  punish- 
ment upon  the  person  affected  by  the  law.  The  court  plainly, 
therefore,  assumed  to  decide  far  more  than  they  were  called 
upon  to  determine.  Nor  was  there  any  necessity  for  this  pro- 
cedure on  their  part.  The  ratio  decidendi  by  which  the  con- 
clusion is  reached  that  the  Missouri  legislation  was  void  as 
against  Cummings,  and  that  the  statute  of  Congress  was  void 
as  against  Garland,  does  not  require  that  the  same  rule  should 
also  be  applied  to  those  who  are  simply  seeking  admission  into 
any  profession  or  pursuit.  Most  of  the  opinion  delivered  by 
Mr.  Justice  Field  is,  therefore,  demonstrably  a  mere  dictum, 
and  has  no  binding  efficacy  as  a  precedent,  no  quality  of  an 
express  adjudication  upon  an  actual  state  of  facts  involved  in 
a  legal  controversy.  Whatever  force  and  effect  can  be  given 
to  it,  must  be  due  entirely  to  its  merits  as  a  voluntary  discus- 
sion of  propositions  not  yet  judicially  settled. 

§  532.  There  is  certainly  a  distinction  between  the  two 
classes  of  persons  against  whom  the  legislation  under  review  is 
directed,  —  those  already  admitted  by  the  preexisting  law  to 
membership  in  any  particular  trade,  profession,  or  calling,  and 
those  applying  to  be  admitted  since  the  new  conditions  were 
imposed,  —  a  distinction  in  substance  and  not  of  form,  and  yet 
a  distinction  which  the  court  and  the  dissenting  judges  have 
entirely  ignored.  The  fallacy  of  the  reasoning  which  runs 
through  the  prevailing  opinion  is,  that  it  completely  confounds 
legal  rights  vested  in  a  person,  and  mere  capacities  inhering  in 
a  person  to  acquire  rights,  or  to  have  rights  conferred  upon 
him.  Rights  and  capacities  are  different  in  their  essential  na- 
ture. Destroy  or  abridge  the  former,  and  you  inflict  a  for- 
feiture or  a  penalty  ;  destroy  or  abridge  the  latter,  and  you 
only  affect  a  privilege,  from  which  a  right  might  perhaps  have 
arisen,  but  from  which  no  right  has  yet  arisen.  To  illustrate 
by  a  familiar  and  plain  example  :   Married  persons  are  in  a  far 


346  THE    TEST    OATH   CASES. 

different  position  legally  from  those  unmarried.  The  formei 
are  clothed  with  a  status  which  draws  after  it  Innumerable 
I  rights  between  the  spouses  and  against  the  world,  both 
of  person  and  of  property  ;  the  latter  have  only  a  capacity, 
which  enables  them,  if  they  please,  to  assume  the  static  of 
marriage  ;  but  it  cannot  be  said  of  them,  with  any  propriety 
of  expression,  that  they  have  a  vested  legal  right  to  be  mar- 
ried. A  law  which  should  break  the  existing  bond  between 
husband  and  wife,  would  destroy  legal  rights,  and  thereby 
create  a  forfeiture,  or  perhaps  a  penalty.  A  law  which  should 
declare  that  no  persons  shall  hereafter  marry  until  they  have 
reached  the  age  of  twenty-one,  would  abridge  an  existing  ca- 
pacity, but  would  not  impair  any  legal  right,  and  then-fore 
would  not  impose  any  forfeiture.  Legal  rights  cannot  exist 
without  corresponding  legal  duties  resting  upon  some  correla- 
tive parties;  legal  rights  must  avail  against  some  persons, 
either  against  determinate  individuals,  or  against  all  mankind. 
If  the  capacity  of  an  unmarried  person  to  marry  be  a  legal 
right,  against  whom  does  it  avail,  and  upon  whom  does  the 
corresponding  duty  rest?  But  the  reasoning  of  the  court 
must  inevitably  hold  that  a  statute  destroying  the  capacity  to 
marry  under  the  age  of  twenty-one,  would  inflict  a  penalty  or 
forfeiture  upon  all  unmarried  persons  below  that  age,  in  the 
same  manner  that  a  law  dissolving  the  marriage  status  would 
impose  a  forfeiture  upon  those  affected  thereby. 

§  533.  This  illustration  may  be  immediately  applied  to  the 
cases  of  lawyers,  clergymen,  and  the  like.  After  individuals 
have  been  clothed  with  the  professional  status  according  to  the 
preexisting  law,  they  become  possessed  of  vested  legal  rights 
.lowing  from  that  condition  ;  to  destroy  or  abridge  these  rights 
is  to  impose  a  forfeiture  ;  to  destroy  or  abridge  them  as  a  con- 
sequence of  criminal  acts  which  were  not  thus  punishable 
vhen  committed,  is  to  violate  the  provisions  of  the  Constitu- 
tion inhibiting  ex  post  facto  laws.  But  to  say  that  no  person 
shall  hereafter  be  admitted  to  the  legal  or  the  clerical  profession 
until  he  has  complied  with  certain  new  conditions,  impairs  no 
'egal  right  ;  it  only  abridges  a  former  capacity,  a  capacity  which 
was  expressly  or  tacitly  granted  by  the  legislature,  and  which 


EX  POST  FACTO  LAWS.  347 

is  under  the  control  of  that  body.  The  people  of  Missouri 
and  the  national  Congress  may  have  required,  and  undoubtedly 
did  require,  the  new  conditions  from  persons  intending  to  en- 
ter the  bar,  or  the  ranks  of  the  clergy,  as  a  consequence  of  the 
fact  that  many  had  participated  in  acts  deemed  to  be  criminal, 
and  did  intend  to  shut  the  door  against  such  participants  ;  but 
their  legislation  cannot  be  said  to  inflict  a  punishment,  pen- 
alty, or  forfeiture,  because  it  takes  away,  abridges,  or  impairs 
no  legal  right  whatever.  My  conclusion  therefore  is,  that  the 
constitution  of  Missouri  and  the  statute  of  Congress,  so  far  as 
they  are  applicable  to  persons  admitted  to  the  professional 
status,  are  ex  post  facto  laws,  and  void  ;  so  far  as  they  are  ap- 
plicable to  persons  not  admitted  but  desiring  to  enter,  they  are 
opposed  to  no  restrictions  of  the  national  Constitution,  and  are 
valid. 

§  534.  These  views  were  lately  adopted  and  enforced  by 
the  Supreme  Court  of  the  District  of  Columbia,  in  Ex  parte 
Magruder  (Feb.  12,  1867).  Magruder  had  never  been  ad- 
mitted to  the  bar  of  that  court.  An  application  was  made, 
based  upon  the  decision  of  the  Supreme  Court  of  the  United 
States  in  the  Cummings  and  Garland  cases,  that  he  might  be 
admitted  without  taking  the  test  oath  required  by  the  act  of 
Congress  and  the  rules  of  the  court.  The  application  was, 
however,  denied,  for  reasons  substantially  the  same  as  those 
set  forth  in  the  preceding  sections. 

§  535.  It  hardly  need  be  said  that,  in  my  opinion,  those 
clauses  of  the  Missouri  constitution  which  relate  to  voters,  and 
prescribe  conditions  for  the  exercise  of  the  electoral  franchise, 
are  opposed  to  no  prohibition  of  the  national  Constitution. 
The  subject  of  voting  is  completely  within  the  control  of  the 
states  ;  the  electoral  franchise  is  not  a  right,  but  a  privilege, 
which  must  be  conferred  by  the  positive  law  of  each  common- 
wealth. Whenever  a  state  desires  to  enlarge  or  restrict  the 
number  of  voters,  it  may  do  so,  and  no  legal  rights  are  im- 
paired. Had  the  Missouri  constitution  said  in  terms  that  all 
persons  guilty  of  disloyal  practices  should  in  future  be  cut  off 
from  the  number  of  voters  ;  or  had  it  specified  individuals  by 
name  who  were  to  be  thus  cut  off,  these  provisions  would  not 


348  APPROPRIATIONS   OF  MONET. 

come  within  the  definition  of  ex  post  facto  laws,  because  no 
legal  right  would  have  been  abridged,  and  no  punishment, 
penalty,  or  forfeiture  inflicted.  One  consideration  is  absolutely 
decisive  of  this  whole  question.  Assume  that  the  clauses  of 
the  Missouri  constitution,  so  far  as  they  require  a  test  oath  from 
voters,  should  be  declared  void,  what  advantage  would  those 
persons  gain  who  refuse  to  take  the  oath  ?  Could  they  be  ad- 
mitted to  vote?  Certainly  not;  because  the  organic  law  of 
the  state  does  not  confer  any  such  right  upon  them.  To  that 
constitution  we  must  go  in  order  to  ascertain  who  are  pos- 
sessed of  the  electoral  franchise  ;  such  privilege  must  be  c< in- 
ferred in  affirmative  terms,  —  silence  does  not  grant  it;  the 
fundamental  law  of  the  state  does  grant  it  to  certain  specified 
classes;  among  whom  persons  refusing  to  take  the  test  oath 
are  not  included.  This  fact  at  once  shows  that  the  voter  pos- 
sesses a  mere  privilege  ;  that  the  states  have  supreme  control 
over  this  privilege  ;  that  taking  it  away,  or,  what  is  the  same 
thing,  refusing  to  confer  it,  does  not  impair  a  right,  and  can- 
not be  regarded  as  a  penalty  or  punishment.  The  highest 
court  of  Missouri  has  very  recently  affirmed  the  validity  of 
those  clauses  in  the  state  constitution,  which  regulate  the  sub- 
ject of  voting,  and  it  is  supposed  the  case  will  be  reviewed  by 
the  Supreme  Court  of  the  United  States.  I  add  in  the  foot- 
note a  few  important  cases  in  which  the  nature  of  ex  post  facto 
laws  has  been  examined  by  state  courts.1 

III.    Other  express  Prohibitions. 

§  586.  The  ninth  section  of  the  first  article  provides,  in 
paragraph  six,  that  "  no  money  shall  be  drawn  from  the  treas- 
ury but  in  consequence  of  appropriations  made  by  law."  The 
importance  of  this  restriction  is  evident.  It  is,  indeed,  the 
very  key-stone  which  holds  together  the  arch  of  constitutional 
powers  and  limitations.  Withdraw  this,  and  all  others  would 
become  mere  words,  with  no  force  or  efficacy.  How  far  would 
an  ambitious  President  be  restrained  from  the  accomplishment 

l  Matter  of  Dorsey,  7  Porter's  (Ala.)  R.  294 ;  Mississippi  v.  Smcdes,  26 
Miss.  R.  47;  Cohen  v.  Wright,  26  Cal.  R.  273  ;  State  v.  Garesche,  36  Mis- 
Bouri  R.  256  ;   State  v.  Cummings,  36  Missouri  R.  263. 


OBLIGATION   OF   CONTEACTS.  349 

of  his  designs  by  the  clause  forbidding  appropriations  for  the 
army  for  more  than  two  years,  if  he  might  draw  money  from 
the  treasury  without  appropriation?  This  single  example  is 
enough  to  illustrate  the  importance  of  the  provision  in  ques- 
tion. There  could  be  no  safety  without  it,  and  the  security  of 
the  whole  governmental  fabric  depends  upon  its  strict  and  lit- 
eral observance  by  all  officers  and  departments  of  the  adminis- 
tration. 

The  seventh  paragraph  of  the  same  section,  which  declares 
that  "  no  title  of  nobility  shall  be  granted  by  the  United 
States,  and  no  person  holding  any  office  of  profit  or  trust  un- 
der the  same  shall,  without  the  consent  of  Congress,  accept  of 
any  present,  emolument,  office,  or  title  of  any  kind  whatever, 
from  any  king,  prince,  or  foreign  state,"  does  not  seem  to  re- 
quire particular  comment. 

Second.     Those  Prohibitions  which  are  directed  alone  against 
the  State  Legislatures. 

§  537.  Passing  now  to  those  restrictions  which  are  specially 
laid  upon  the  states,  and  which  are  grouped  together  in  the 
tenth  section  of  article  first,  we  find  that  most  of  them  have 
already  been  considered  in  those  sections  of  this  work  which 
discuss  the  power  to  lay  taxes,  regulate  commerce,  raise 
armies,  provide  navies,  and  engage  in  war.  Others,  such  as 
the  prohibition  to  coin  money,  emit  bills  of  credit,  and  make 
any  thing  but  gold  and  silver  coin  a  tender  in  payment  of 
debts,  have  been  sufficiently  referred  to  in  their  proper  con- 
nection. The  clause  forbidding  a  state  to  enter  into  any 
treaty,  alliance,  or  confederation  with  a  foreign  power,  or  with 
another  state,  was  involved  in  the  general  discussion  of  the 
nationality  of  the  United  States. 

Impairing  the   Obligation  of  Contracts. 

§  538.  One  of  the  special  limitations  contained  in  the  tenth 
section  is,  however,  of  the  utmost  importance,  and  has  given 
rise  to  more  forensic  argument,  and  occasioned  a  greater  num- 
ber of  judicial  decisions,  than  all  other  provisions  of  the  Con- 
stitution   combined.     I  purpose   to  give   it  a  careful  and  ey 


350  EXECUTORY  COX  TRACTS. 

haustive  examination,  referring  to  judgments  both  of  the  na- 
tional and  the  state  courts,  and  endeavoring  to  arrive  at  some 
general  principles  by  which  all  cases  may  be  controlled.  The 
clause  is  short  and  apparently  simple :  "No  state  shall  pass 
any  law  impairing  the  obligation  of  contracts."  Simple  as  this 
prohibition  seems,  it  is,  nevertheless,  very  difficult  to  reach  its 
full  meaning,  so  as  to  decide  whether  a  particular  law  is  in- 
hibited by  it  or  not.  We  must  determine  the  legal  signifi- 
cation, force,  and  effect  of  three  words  ;  we  must  ascertain 
what  a  "  contract"  is,  what  the  "  obligation  "  of  a  <  ontract  is, 
and  what  "  impairing  "  that  obligation  is.  Upon  each  one  of 
these  three  points  there  has  been  a  vast  amount  of  contro- 
versy. I  shall,  therefore,  proceed  to  examine  these  questions 
separately,  calling  to  our  aid  the  decisions  of  the  Supreme 
Court  of  the  United  States,  and  of  the  various  state  courts, 
giving  to  the  former,  as  is  proper,  the  greater  authority. 

I.    What  are  Contracts  within  this  Provision  of  the  Constitution  ? 

§  539.  A  contract  is  defined  by  C.  J.  Marshall  to  be  "  an 
agreement  in  which  a  party  undertakes  to  do,  or  not  to  do,  a 
particular  thing."  Contracts  may  be  express,  or  implied; 
express,  when  the  parties  formally  and  in  positive  terms  declare 
what  is  to  be  done  or  forborne  ;  implied,  when  the  stipulations 
are.  not  thus  definitely  set  forth,  but  are  inferred  from  the  con- 
duct, situation,  or  relations  of  the  parties,  and  the  promise  is 
treated  as  though  actually  made,  because  in  good  faith  it  ought 
to  have  been  made.  Contracts  may  also  be  executory,  or  exe- 
cuted ;  executory,  when  the  promise  or  stipulation  is  yet  un- 
performed ;  executed,  when  the  promise  or  stipulation  has  been 
performed. 

1.  Executory   Contracts. 

§  540.  Adopting  the  foregoing  elementary  definitions  and 
divisions,  I  say  — 

Express  executory  contracts  made  between  private  persons 
are  plainly  within  the  restrictive  provision  of  the  organic  law. 
This  has  never  been  doubted  or  questioned. 

Implied  executory  contracts  between  private  persons  are  as 


OBLIGATION   OF   CONTRACTS.  351 

plainly  and  confessedly  covered  by  the  general  terms  of  the 
Constitution. 

2.  Executed  Contracts. 

§  541.  When  the  parties  have  performed  the  stipulations 
agreed  upon,  and  the  rights  are  no  longer  future  or  executory, 
but  have  become  fixed,  so  that  the  compact  is  now  in  the  na- 
ture of  a  grant  of  property,  power,  or  rights,  is  there  still  such 
a  contract  within  the  meaning  of  the  Constitution,  that  the 
state  legislatures  are  forbidden  to  step  in,  annul  the  perfected 
results  of  the  executed  agreement,  and  restore  the  parties  to 
their  original  position  ?  The  Supreme  Court  of  the  United 
States  has  answered  this  question  in  the  affirmative,  and  has 
decided  that  executed  as  well  as  executory  contracts  are  em- 
braced within  the  restrictive  operation  of  the  Constitution.  In 
many  such  cases  a  party  would  also  be  protected  by  the  clause 
in  most,  if  not  all,  of  the  state  constitutions,  forbidding  stat- 
utes which  deprive  a  person  of  his  property  without  due 
process  of  law. 

§  542.  The  first  case  in  order  of  time  was  Fletcher  v. 
Peck.1  The  legislature  of  Georgia  had  by  statute  conveyed 
certain  lands  to  particular  grantees.  Subsequently  the  legis- 
lature of  the   same   state    revoked   the   former  grant,  on    the 

O  7 

ground  of  alleged  corruption,  and  transferred  the  lands  to 
other  persons.  The  parties,  plaintiff  and  defendant  in  the  suit, 
represented  these  two  sets  of  grantees,  and  the  whole  case 
turned  upon  the  validity  of  the  second  statute.  Chief  Justice 
Marshall  delivered  the  opinion  of  the  court.  After  defining 
the  word  "  contract,"  and  stating  the  distinction  between  ex- 
ecutory and  executed  agreements,  he  proceeds  :  2  "  Since  then, 
in  fact,  a  grant  is  a  contract  executed,  the  obligation  of  which 
still  continues,  and  since  the  Constitution  uses  the  general 
term  'contract,'   without  distinguishing  between  those   which 

7  o  o 

are  executory  and  those  which  are  executed,  it  must  be  con- 
strued to  comprehend  the  latter  as  well  as  the  former.  A  law 
annulling  conveyances  between  individuals,  and  declaring  that 
ihe  grantors  should  stand  seized  of  their  former  estates  not- 
1  6  Cranch's  R  87.  2  ibid.  137. 


352  EXECUTED   CONTRACTS. 

withstanding  those  grants,  would  be  as  repugnant  to  the  Con- 
stitution as  a  law  discharging  the  vendors  of  property  from  the 
obligation  of  executing  their  contracts  by  conveyances.  It 
would  be  strange  if  a  contract  to  convey  was  secured  by  the 
Constitution,  while  an  absolute  conveyance  remained  unpro- 
tected. 

§  543.  "  If  under  a  fair  construction  of  the  Constitution 
grants  are  comprehended  under  the  term  contracts,  is  a  grant 
from  the  state  excluded  from  the  operation  of  the  provision  ? 
Is  the  clause  to  be  considered  as  inhibiting  a  state  from  impair- 
ing the  obligation  of  contracts  between  two  individuals,  but  as 
excluding  from  that  inhibition  contracts  made  with  ii 
The  words  themselves  contain  no  such  distinction.  They  are 
general  and  are  applicable  to  contracts  of  every  description. 
If  contracts  made  with  a  state  are  to  be  exempted  from  their 
operation,  the  exception  must  arise  from  the  character  of  the 
contracting  party,  not  from  the  words  which  are  employed. 
"Whatever  respect  might  have  been  felt  for  the  state  sover- 
eignties, it  is  not  to  be  disguised  that  the  framers  of  the  Con- 
stitution viewed  with  some  apprehension  the  violent  acts  which 
might  grow  out  of  the  feelings  of  the  moment ;  and  that  the 
people  of  the  United  States  in  adopting  that  instrument  have 
manifested  a  determination  to  shield  themselves  and  their  prop- 
erty from  the  effects  of  those  sudden  and  strong  passions  to 
which  men  are  exposed.  The  restrictions  on  the  legislative 
powers  of  the  states  are  obviously  founded  on  this  sentiment  ; 
and  the  Constitution  of  the  United  States  contains  what  may 
be  deemed  a  bill  of  rights  for  the  people  of  each  state."  The 
court  unanimously  declared  the  second  statute  passed  by  the 
Georgia  legislature  to  be  void. 

§  544.  The  same  doctrine  was  emphatically  stated  by  the 
court  in  Terret  v.  Taylor1  (1815),  the  opinion  being  delivered 
by  Mr.  Justice  Story.  Again,  in  the  great  case  of  Dartmouth 
College  v.  Woodward2  (1819),  Chief  Justice  Marshall  uses 
the  following  language  :3  "If  a  doubt  could  exist  that  a  grant 
is  a  contract,  the  point  was  decided  in  Fletcher  v.  Peck,  in 
which  it  was  laid  down  ....  that  whether  executed  or 
1  9  Cranch's  R.  43,  52.  2  4  Wheaton's  R.  518.  3  Ibid.  606. 


OBLIGATION   OF   CONTRACTS.  353 

executory  both  [forms  of  contract]  contain  obligations  binding 
on  the  parties,  and  both  are  equally  within  the  provisions  of 
the  Constitution  of  the  United  States,  which  forbids  the  state 
governments  to  pass  laws  impairing  the  obligation  of  con- 
tracts." 

§  545.  These  early  decisions  of  the  Supreme  Court  of  the 
United  States  have  been  repeatedly  followed  by  the  same  tri- 
bunal. The  latest  case  which  involves  and  restates  the  same 
principle  is  McGee  v.  Matins1  (1866).  In  1850  the  United 
States  gave  to  the  State  of  Arkansas  certain  wild  lands  upon 
certain  conditions,  which  were  accepted  by  the  state.  In  1851 
the  state  legislature  passed  a  statute  providing  for  the  sale  and 
drainage  of  these  lands  ;  and  for  that  purpose  a  transferable 
scrip  was  issued,  which  was  paid  to  contractors  who  con- 
structed drains  and  levees,  and  which  could  be  received  in  pay- 
ment of  any  of  these  lands  which  should  be  taken  up  by  the 
holder.  To  encourage  the  reclamation  of  these  lands,  the  same 
statute  enacted  "  that  all  said  lands  shall  be  exempt  from  tax- 
ation for  the  term  of  ten  years,  or  until  they  shall  be  re- 
claimed." In  1855  this  latter  clause  was  repealed,  and  the 
lands  were  included  in  the  general  taxation.  In  1857  another 
statute  was  passed  which  imposed  a  special  tax  on  the  same 
lands.  The  plaintiff  had,  before  1855,  become  owner  of  a 
quantity  of  land-scrip,  with  which  he,  after  1855,  took  up  and 
located  a  number  of  sections.  The  action  was  brought  to  re- 
lieve  the  portions  thus  taken  up  and  located  from  the  state 
tax.  The  Supreme  Court  of  the  United  States  declared  the 
statute  exempting  these  lands  from  taxation  to  be  a  contract 
between  the  state  and  the  scrip-holders ;  and  pronounced  the 
repeal  invalid  as  to  those  persons  who  were  holders  at  the 
time. 

§  516.  By  the  preceding  judgments  of  the  highest  national 
court,  the  following  general  propositions  have  been  established 
as  a  part  of  the  constitutional  law  of  the  land  : 

An  executed  agreement,  or  grant,  between  private  persons, 
by  means  of  which  property,  powers,  or  rights  are  transferred 

1  4  Wallace's  R.  143. 
23 


354  GRANTS   FROM  STATES. -OFFICES. 

from  one  to  the  other,  is  a  contract,  with  the  obligation  of  which 
no  state  may  interfere. 

A  state  may  also  make  a  grant  to  a  private  person,  by  means 
of  which  rights  are  conferred  upon  him  ;  and  a  contract  is  tints 
perfected  between  them,  the  obligation  of  which  the  state  may 
not  afterwards  impair  by  altering,  amending,  or  repealing  the 
terms  of  the  grant. 

By  far  the  greater  number  of  judicial  questions  which  have 
arisen  and  been  passed  upon  by  the  courts,  have  related  to 
grants  made  by  states  to  private  persons;  the  contention  being 
whether  such  grants  amounted  to  contracts  so  as  to  be  binding 
upon  the  commonwealths  which  made  them.  It  will  be  imme- 
diately perceived  that  this  controversy  involves  the  whole  sub- 
ject of  national  and  state  sovereignties.  The  partisans  of  state 
sovereignty  have  uniformly  contended  that  the  supreme  dis- 
posing power  of  a  state  cannot  be  limited  ;  that  what  one  legis- 
lature has  done  another  may  always  undo  ;  that  a  contract 
between  a  state  and  a  private  person,  by  which  the  former 
confers  absolute  rights  upon  the  latter,  is  a  simple  impossibility. 
Through  the  mass  of  forensic  and  judicial  discussion  growing 
out  of  this  subject  I  must  now  conduct  the  reader.  We  shall 
find  much  discrepancy,  much  conflict ;  but  at  the  same  time 
we  shall  discover  certain  grand  principles  firmly  established  by 
that  court  which  has  the  power  to  decide  authoritatively  upon 
the  meaning  and  import  of  constitutional  provisions.  I  shall, 
therefore,  take  up  in  order  several  species  of  legislative  acts, 
and  inquire  whether  they  are  contracts. 

3.   Offices. 

§  547.  When  the  law-making  power  of  a  state  has  created 
an  office  with  a  certain  salary  and  emoluments,  and  a  person 
has  been  appointed  to  the  official  position,  and  is  fulfilling  its 
duties  and  receiving  its  perquisites,  is  the  state  legislature, 
in  the  absence  of  any  provision  of  the  local  constitution,  re- 
strained by  the  organic  law  of  the  nation  from  abolishing  the 
office  before  the  term  thereof  has  expired,  and  from  depriving 
the  officer  of  the  gains  which  he  would  otherwise  have  re- 
ceived ?     In   other  words,   is  the   statute   creating   an   office, 


OBLIGATION  OF  CONTRACTS.  355 

taken  in  connection  with  the  appointment  of  a  person  thereto, 
an  executed  contract  between  the  state  and  that  person,  which 
is  protected  by  the  Constitution  of  the  United  States  ?  The 
decisions  of  courts  and  the  dicta  of  judges  have,  with  hardly  a 
dissenting  voice,  answered  this  question  in  the  negative,  and 
determined  that  public  offices  are  not  contracts. 

§  548.  In  the  case  of  Warner  v.  The  People,1  the  legisla- 
ture of  New  York  had  virtually  abolished  an  office,  and  had 
created  another  in  its  stead.  The  power  to  do  so  depended 
entirely  on  the  state  constitution,  and  that  fundamental  law 
was  alone  invoked  in  deciding  the  question.  The  legislative 
act  was  held  to  be  invalid.  But  in  the  course  of  his  opinion 
Chancellor  Walworth  uttered  a  dictum  which,  coming  from  so 
able  a  judge,  is  entitled  to  much  weight.  He  says  :  "  The  fees 
and  emoluments  of  office  may  not  only  be  reduced  by  direct 
legislation,  but  incidentally  by  the  division  of  towns  and  coun- 
ties, and  the  erection  of  new  courts,  etc.,  as  the  public  good 
may  from  time  to  time  require." 

§  o49.  The  case  of  Connor  v.  The  City  of  New  York  2  di- 
rectly presented  the  question  for  decision.  The  court  held, 
that  in  creating  an  office  either  by  the  state  constitution  or  by 
state  legislation,  and  in  appointing  an  individual  thereto,  no 
contract  arose  between  him  and  the  state  ;  that  he  occupied 
only  a  position  of  personal  trust ;  that  his  fees  or  salary  were 
not  to  be  regarded  as  the  legal  consideration  of  an  agreement 
on  his  part  to  hold  the  office  for  the  prescribed  period.  The 
following  general  propositions  were  laid  down  :  When  an  office 
is  created  by  the  constitution,  and  the  term  and  salary  thereof 
are  defined,  the  people  in  their  sovereign  capacity  may,  by  a 
new  constitution,  terminate  both  without  regard  to  the  rights, 
the  interests,  or  the  expectations  of  the  incumbent.  An  office 
created  by  law  may  be  repealed  by  law,  without  regard  to  the 
term  or  future  salary  of  the  officer  intrusted  with  its  exercise. 
There  is  no  contract,  either  express  or  implied,  between  a  pub- 
Mc  officer  and  the  government  whose  agent  he  is.  Nor  have 
public  officers  any  proprietary  interest  in  their  offices,  or  any 
property  in  the  prospective  compensation  attached  thereto.  A 
1  2  Demo's  R.  272,  281.  2  2  Sandtbrd's  li.  355 


356  PUBLIC  OFFICES. 

public  officer  is  an  agent  elected  or  appointed  to  perform 
certain  political  duties  in  the  administration  of  the  govern- 
ment. 

§  550.  This  case  of  Connor  v.  The  City  of  New  York  was 
carried  to  the  Court  of  Appeals  of  New  York,  and  was  there 
affirmed.1  In  delivering  the  opinion  of  the  court,  Mr.  Justice 
Ruggles  said  :  "  Public  offices  in  this  country  are  nut  incorpo- 
real hereditaments  ;  nor  have  they  the  character  or  qualities 
of  grants.  They  are  agencies.  With  a  few  exceptions  they 
are  voluntarily  taken,  and  may  at  any  time  be  resigned.  They 
are  created  for  the  benefit  of  the  public,  and  not  granted  for 
the  benefit  of  the  incumbent.  Their  terms  are  fixed  with  a 
view  to  public  utility  and  convenience,  and  not  for  the  pur- 
pose of  granting  the  emoluments  during  that  period  to  the 
office  holder." 

§  551.  In  the  case  of  Knoup  v.  The  Piqua  Bank,2  Mr.  Jus- 
tice Corwin,  speaking  for  the  Supreme  Court  of  Ohio,  says : 
"  In  America  a  public  officer  is  only  a  public  agent  or  trustee, 
and  has  no  proprietorship  or  right  of  property  in  his  office. 
He  is  but  a  trustee  for  the  public,  and  whenever  the  public 
interest  requires  that  the  office  should  be  abolished,  or  the 
duties  of  the  office  become  unnecessary,  the  incumbent  cannot 
object  to  the  abolition."  A  similar  dictum  was  uttered  by  the 
same  court  in  The  Toledo  Bank  v.  Bond.3  The  Supreme 
Court  of  Pennsylvania  announced  the  doctrine  in  The  Com- 
monwealth v.  Bacon,4  in  which  Mr.  Justice  Duncan  .-aid: 
"  The  broad  ground  taken  on  the  part  of  the  May  >r  is,  that 
the  city  council  cannot  legally  diminish  his  salary  during  his 
continuance  in  office.  It  has  been  endeavored  to  support  this 
position  both  on  the  principle  of  contract,  and  because  it  is 
forbidden  by  the  Constitution.  This  cannot  be  considered  in 
the  nature  of  a  hiring  for  a  year,  because  it  was  not  obliga- 
tory upon  the  mayor  to  serve  out  the  year.  The  services 
rendered  by  public  officers  do  not  partake  of  the  nature  of  con- 
tracts, nor  have  they  the  remotest  affinity  thereto."  The  same 
court  again  asserted  the  doctrine  in  the  way  of  a  dictum  by 

1  1  Selden's  R.  285,  295.  2  1  Ohio  State  R.  603,  616. 

3  1  Ohio  State  R.  655.  4  6  Sergeant  &  Rawle's  R.  322. 


OBLIGATION  OF   CONTRACTS.  357 

Mr.  Justice  Rogers  in  The  Commonwealth  v.  Mann,1  and 
finally  made  it  the  very  ground  of  decision  in  Barker  v.  The 
City  of  Pittsburgh.2 

§  552.  In  the  Supreme  Court  of  the  United  States,  that  final 
arbiter  of  rights  under  the  Constitution,  there  is  but  one  de- 
cision directly  in  point,  though  there  are  dicta  uttered  by  judges 
of  such  acknowledged  learning  and  ability  that  their  opinions 
have  a  certain  weight  of  authority.  Thus  in  Dartmouth  Col- 
lege v.  Woodward,3  Mr.  Justice  Story  said:  "The  State  legis- 
latures have  power  to  enlarge,  repeal,  or  limit  the  authority  of 
public  officers  in  their  official  capacity,  in  all  cases  where  the 
constitutions  of  the  states  respectively  do  not  prohibit  them  ; 
and  this,  among  others,  for  the  very  good  reason  that  there  is 
no  express  or  implied  contract  that  they  shall  always,  during 
their  continuance  in  office,  exercise  such  authorities.  They  are 
to  exercise  them  only  during  the  good  pleasure  of  the  legislature." 
He  compared  offices  to  naked  powers,  revocable  at  pleasure. 
Mr.  Chief  Justice  Marshall  also  expressed  an  opinion  to  the 
same  effect.  In  the  case  of  The  West  River  Bridge  Company 
v.  Dix,4  the  doctrine  was  approved  by  a  judicial  dictum.  Fi- 
nally, in  Butler  v.  Pennsylvania,5  the  Supreme  Court  of  the 
United  States  met  the  question,  and  unanimously  disposed  of 
it  in  the  same  manner  as  was  done  hy  the  state  courts,  whose 
judgments  have  been  quoted. 

§  553.  It  may,  therefore,  be  considered  as  a  settled  point  of 
constitutional  law,  settled  both  by  the  national  and  the  state 
courts,  that  a  public  office  bears  no  resemblance  to  a  contract ; 
and  that  state  legislatures  have  full  power  over  the  public  offices 
of  the  commonwealth,  except  so  far  as  they  may  be  restrained 
by  the  local  constitutions.  The  clause  of  the  United  States 
Constitution  which  prohibits  state  laws  impairing  the  obligation 
of  contracts,  has  no  application  whatever  to  this  subject. 

4.  Licenses. 

§  554.  May  a  license  to  perform  some  act,  or  carry  on  some 
business,  —  as  that  of  selling  spirituous  liquors,  or  dealing  in 

1  5  Watts  &  Sergeant's  R.  403,  418.  2  4  Barr's  R.  49. 

*  4  Wheaton's  R.  518,  693.       4  6  Howard's  R.  507,  548.       5  10  Ibid.  409 


B58  LICENSES. 

lottery  tickets,  —  issued  by  a  state  to  private  individuals  ir. 
pursuance  of  law,  either  with  or  without  the  payment  of  a  foe. 
be  annulled  before  the  period  of  time  during  which  it  was  tc 
last  has  expired,  by  a  subsequent  legislative  act  repealing  or 
modifying  the  original  statute  under  which  the  license  was 
issued  ?  In  other  words,  is  such  a  license  a  grant,  so  as  to  be 
a  contract  between  the  state  and  the  individual  to  whom  it  is 
issued  ?  We  shall  find  comparatively  few  cases  in  which  this 
question  is  directly  involved,  and  authoritatively  answered. 
The  word  "  license  "  is  one  familiar  in  the  Common  Law  no- 
menclature. It  there  means  a  personal  permission  given  by 
the  owner  of  lands  to  an  individual,  for  that  person  to  do  some 
act  or  series  of  acts  upon  the  licenser's  lands,  which  acts,  but 
for  the  permission,  would  have  been  trespasses.  Such  licenses 
may  be  oral  or  written.  In  either  case  the  Common  Law  de- 
clares a  simple  license,  even  though  money  had  been  paid  for 
it,  to  be  revocable  at  the  will  of  the  licenser.1  Are  licenses 
from  a  state  similar  in  their  nature,  mere  naked  permissions, 
and  revocable  at  will  ?  A  very  decided  preponderance  of  ju- 
dicial authority  has  answered  this  question  in  the  affirmative. 
Upon  principle  there  would  seem  to  be  no  doubt  of  the  correct- 
ness of  this  position.  A  license  from  the  state  authorizing  a 
person  to  do  some  act  which  is  generally  forbidden,  is  a  mere 
permission  which  excepts  the  individual  from  the  operation  of 
laws  that  would  otherwise  prohibit  him,  as  well  as  all  other 
citizens,  from  doing  the  specified  act.  Thus,  when  a  statute 
provides  for  licensing  persons  to  sell  spirituous  liquors,  it  vir- 
tually says,  spirituous  liquors  shall  not  be  sold  as  a  general  rule, 
but  to  this  rule  there  shall  be  some  exceptions,  and  those  who 
are  licensed  constitute  the  exceptions.  A  state  license  of  the 
kind  we  are  considering,  has,  therefore,  no  element  of  a  con- 
tract, and  does  not  fall  within  the  protection  of  the  national 
Constitution.  These  conclusions  are  supported  by  judicial 
dicta  and  decisions  to  which  a  brief  reference  will  now  be 
made. 

§  555.  In  Hirn  v.  The  State  of  Ohio,2  the  Supreme  Court 

1  See  Wood  v.  Leadbitter,  13  M.  &  W.  838. 
a  1  Ohio  State  R.  15,  21. 


OBLIGATION  OF   CONTRACTS.  359 

of  Ohio  say,  while  discussing  the  effect  of  a  law  which  repealed 
a  former  statute  permitting  licenses  to  be  issued  :  "  The  court 
is  not  disposed  to  question  the  power  of  the  legislature  in  a 
matter  of  this  kind,  connected  as  it  is  with  the  public  policy 
and  domestic  regulations  of  the  state.  Upon  the  ground  of 
protecting  the  health,  morals,  and  good  order  of  the  commu- 
nity, we  are  not  prepared  to  say  that  the  legislature  does  not 
possess  the  power  to  revoke,  such  license.  But  where  there 
has  been  no  forfeiture  of  the  license  by  abuse  or  violation  of 
its  terms,  common  honesty  would  require  that  the  money  ob- 
tained for  it  should  be  refunded  in  case  of  its  revocation." 
This  passage  is,  however,  a  mere  dictum,  not  necessary  to  the 
judgment  of  the  court,  for  it  was  held  that  existing  licenses 
were  not  revoked  by  the  repealing  statute. 

In  the  case  of  Adams  v.  Hackett,1  the  Supreme  Court  of 
New  Hampshire  use  the  following  language  :  "  Bancroft  &  Co. 
had  a  general  license  authorising  them  to  sell  until  April  1, 
18*50.  It  was  a  license  granted  by  virtue  of  law.  It  had  cost 
them  a  consideration  to  make  it  perfect,  —  the  fees  for  record- 
ing ;  and  although  the  amount  is  very  trifling,  still  it  was  a 
consideration.  They  had  acquired  rights  under  their  license 
which  had  become  fixed,  and  so  far  as  those  ri edits  were  con- 
cerned,  the  repealing  law  would  be  retrospective,  and  of  course 
inoperative.  Statutes  which  take  away  or  impair  vested  rights 
acquired  under  existing  laws,  are  retrospective  and  unconstitu- 
tional." It  will  be  noticed  that  this  language  has  particular 
reference  to  the  New  Hampshire  constitution  which,  as  we 
have  seen,  in  terms  forbids  all  retrospective  laws.  Still  the 
passage  is  an  authority  for  the  position  that  a  license  is  a  con- 
tract ;  for  it  is  only  by  regarding  it  as  a  contract  between  the 
state  and  the  licensee,  that  he  could  acquire  any  vested  rights 
by  virtue  thereof.  A  subsequent  case,  however,  in  the  same 
state,  pronounces  the  passage  a  dictum  unnecessary  for  the 
iecision  of  the  question  before  the  court,  and  repudiates  its 
loctrine. 

§  556.  In   Phalen  v.  Virginia,2  the  Supreme  Court  of  the 
United  States  uses  language   which,  although  not  the   very 
1  7  Foster's  R.  289,  293.  2  8  Howard's  K.  163, 


360  LICENSES. 

ground  of  the  decision,  indicates  the  opinions  of  the  judges  who 
composed  that  high  tribunal.  The  contention  had  respect  to  a 
statute  of  Virginia  repealing  a  former  law  under  which  licenses 
to  set  up  lotteries  had  been  issued.  The  court  actually  held, 
as  the  basis  of  their  judgment,  that  the  prior  statute  did  not 
make  the  licenses  issued  thereunder  certain  for  any  specified 
time  ;  and  also  that  Phalen's  license  had  become  inoperative 
and  obsolete,  so  that  he  retained  no  rights  under  it.  Mr.  Jus- 
tice Grier  expressed  an  opinion  that  such  licenses  were  not 
contracts  at  all,  so  as  to  be  binding  upon  the  legislature.  After 
speaking  of  a  variety  of  statutes  which  state  legislatures  may 
confessedly  pass,  such  as  recording  acts,  statutes  of  limitation, 
and  the  like,  which  must  incidentally  influence  contracts,  he 
observed  :  "  If  reasons  of  sound  public  policy  justify  legislative 
interference  with  contracts  of  individuals,  how  much  more  will 
it  justify  the  limitation  of  licenses  so  injurious  to  public  morals. 
Without  asserting  that  a  legislative  license  to  raise 
money  by  lotteries  cannot  have  the  sanctity  of  a  franchise  or  a 
contract  in  its  nature  irrevocable,  it  cannot  be  denied  that  the 
limitation  of  such  a  license  as  the  present,  is  as  much  demanded 
by  public  policy  as  other  acts  of  limitation  which  have  received 
the  sanction  of  the  court." 

§  557.  From  these  mere  dicta  I  pass  to  a  few  cases  where 
the  point  was  expressly  presented  for  decision.  In  Calder  v. 
Kurby  1  (Mass.  1856),  a  license  to  sell  liquors  had  been  grant- 
ed for  a  certain  period  ;  the  fee  paid  therefor  was  one  dollar. 
Before  the  period  had  expired,  the  license  was  annulled.  It 
was  urged  on  the  argument  that  such  a  license  was  a  contract 
and  within  the  protection  of  the  national  Constitution.  The 
court  held  the  contrary.  The  opinion  of  Mr.  Justice  Bigelow 
directly  meets  the  question.  He  says  :  "  The  whole  argument 
of  the  counsel  for  the  plaintiff  is  founded  on  a  fallacy.  A 
license  authorising  a  person  to  retail  spirituous  liquors,  does 
not  create  any  contract  between  him  and  the  government.  It 
bears  no  resemblance  to  an  act  of  incorporation  by  which,  in 
consideration  of  the  supposed  benefit  to  the  public,  certain  rights 
and  privileges  are  granted  by  the  legislature  to  individuals, 
1  5  Gray's  R.  597. 


OBLIGATION  OF   CONTRACTS.  361 

ander  which  they  embark  their  skill,  enterprise,  and  capital. 
The  statute  regulating  licensed  houses  has  a  very  different 
scope  and  purpose.  It  was  intended  to  restrain  and  prohibit 
the  indiscriminate  sale  of  certain  articles  deemed  to  be  injurious 
to  the  welfare  of  the  community.  The  effect  of  a  license  is 
merely  to  permit  a  person  to  carry  on  the  trade  under  certain 
regulations,  and  to  exempt  him  from  the  penalties  provided  for 
unlawful  sales.  It  therefore  contained  none  of  the  elements 
of  a  contract.  The  sum  paid  for  it  was  merely  nominal ;  and 
there  was  no  agreement  either  express  or  implied  that  it  should 
be  irrevocable.  On  the  contrary  it  is  manifest  that  this  stat- 
ute, like  those  authorizing  the  licensing  of  theatrical  exhibitions 
and  shows,  sales  of  fireworks  and  the  like,  was  a  mere  police 
regulation  intended  to  regulate  trade,  prevent  injurious  prac- 
tices and  promote  the  good  order  and  welfare  of  the  commu- 
nity, and  liable  to  be  modified  and  repealed  whenever,  in  the 
judgment  of  the  legislature,  it  failed  to  accomplish  these 
objects." 

§  558.  In  The  State  v.  Holmes1  (N.  H.  1859),  the  Su- 
preme Court  of  New  Hampshire  came  to  exactly  the  same 
conclusion,  upon  precisely  the  same  course  of  reasoning.  Mr. 
Chief  Justice  Perley,  in  delivering  the  opinion,  says :  "  It  is 
an  essential  ingredient  of  a  legal  license  that  it  confers  no  right 
or  estate,  or  vested  interest,  but  is  at  all  times  revocable  at  the 
pleasure  of  the  party  who  grants  it.  Nor  has  the  word  any 
popular  use  which  differs  from  the  legal  definition.  In  both  the 
legal  and  the  popular  sense,  the  term  license  implies  no  right 
or  estate  conveyed  or  ceded,  no  binding  contract  between  par- 
ties, but  mere  leave  and  liberty  to  be  enjoyed  as  a  matter  of 
indulgence  at  the  will  of  the  party  who  gives  the  license."  In 
another  passage  of  the  opinion,  the  licensee  is  likened  to  a  pub- 
lic officer  holding  a  position  of  personal  trust,  and  liable  to  be 
deprived  of  his  office  by  legislative  action. 

§  559.  In   The   Metropolitan    Board   of  Excise  v.   Barrie 2 

(N.  Y.  1866),   this   subject  very  recently   came   before   the 

Court  of  Appeals   of  New  York.     Under  a  statute  passed  in 

1857,  the  defendant  had  received,  in  1865,  a  license  to  retail 

l   1  Chandler's  R.  225.  2  7  Tiffany's  R.  657. 


362  LICENSES. 

spirituous  liquors  in  New  York  City,  which,  by  its  terms,  was 
to  continue  in  force  until  fifty  days  after  the  third  Tuesday  in 
May,  1866,  and  for  which  a  substantial  fee  had  been  paid.  In 
April,  1866,  the  legislature  adopted  another  statute  regulating 
the  sale  of  liquors  in  New  York  City,  which  provided,  among 
other  things,  that  after  the  first  of  May,  1866,  no  person  should 
retail  spirituous  liquors  in  that  city  unless  he  had  received  a 
license  therefor  from  the  Metropolitan  Board  of  Excise  erected 
by  the  new  law.  Subsequent  to  the  first  of  May,  1866,  and 
before  his  former  license  would  have  expired  by  its  terms,  the 
defendant  retailed  spirituous  liquors  without  having  received  a 
license  from  the  new  Board.  The  action  was  brought  to  re- 
cover the  prescribed  penalties.  It  was  urged  on  behalf  of  the 
defendant  that  the  statute  of  April,  1866,  so  far  as  it  affected 
him,  was  inhibited  by  the  national  Constitution  and  was  void, 
as  it  destroyed  an  existing  contract  between  him  and  the  state. 
The  court,  by  an  unanimous  judgment,  sustained  the  validity  of 
the  statute.  Mr.  Justice  Wright,  who  delivered  the  opinion, 
after  showing  that  the  legislature  has  complete  authoi'ity  to  regu- 
late the  sale  of  spirituous  liquors,  proceeds  : 1  "It  [the  statute] 
in  terms  revokes  licenses  granted  under  the  act  of  1857,  but 
that  is  no  encroachment  upon  any  right  secured  to  the  citizen 
as  inviolable  by  the  fundamental  law.  These  licenses  to  sell 
liquors  are  not  contracts  between  the  state  and  the  person 
licensed,  giving  the  latter  vested  rights  protected  on  general 
principles  and  by  the  Constitution  of  the  United  States  against 
subsequent  legislation  ;  nor  are  they  property  in  any  legal  and 
constitutional  sense.  They  have  neither  the  qualities  of  a  con- 
tract, but  are  merely  temporary  permits  to  do  what  otherwise 
would  be  an  offence  against  the  general  law.  They  form  a 
portion  of  the  internal  police  system  of  a  state  ;  and  are  issued 
in  the  exercise  of  its  police  powers,  and  are  subject  to  the  di- 
rection of  the  state  government,  which  may  modify,  revoke, 
or  continue  them,  as  it  may  deem  fit.'' 

These  cases  sufficiently  illustrate  and  sustain  the  proposition 
•tated  in  a  preceding  paragraph. 

1  7  Tiffany's  R.  667. 


OBLIGATION  OF   CONTRACTS.  363 

5.   Private   Corporations. 

§  560.  Without  attempting  any  exhaustive  analysis  and 
definition,  it  is  sufficient  here  to  say,  for  purposes  of  illustra- 
tion, that  the  corporations  known  to  the  American  law  are 
municipal,  established  for  governmental  purposes  ;  or  private, 
established  for  some  purposes  of  direct  private  gain  or  advan- 
tage, although  the  public,  as  an  unorganized,  and  not  as  a  mu- 
nicipal body,  may  be  indirectly  benefited  thereby.  Cities,  vil- 
lages, and  towns  are  examples  of  the  former  class.  The  latter 
class  includes  those  formed  purely  for  the  transaction  of  busi- 
ness, as  banking,  insurance,  railway  and  bridge  companies,  and 
the  like ;  those  which  are  exclusively  or  partially  eleemosy- 
nary, as  colleges,  hospitals,  asylums ;  and  those  which  are 
simply  religious,  as  church  societies.  All  private  corporations 
in  the  United  States  are  created  immediately  or  mediately 
by  legislative  act.  Two  modes  are  in  common  use  in  which 
these  associations  are  called  into  legal  existence.  A  single 
corporation  may  be  authorized  by  a  special  statute  which  is 
technically  known  as  its  charter  ;  or  the  legislature  may  pass 
a  general  law  permitting  any  persons  complying  with  its  pro- 
visions to  associate  themselves  and  assume  the  corporate  char- 
acter. This  latter  method  is  of  somewhat  recent  origin,  and 
is  rapidly  becoming  general  throughout  the  United  States. 

§  561.  The  question  to  be  considered  is,  are  the  charters  of 
private  corporations  —  or,  in  other  words,  the  acts  of  incor- 
poration, whether  special  or  general  —  contracts  between  the 
company  and  the  state,  the  obligation  of  which  the  latter  is 
forbidden  to  impair?  No  other  matter  connected  with  con- 
stitutional interpretation  has  given  rise  to  so  many  decisions, 
state  and  national,  and  to  such  a  fundamental  difference  of 
opinion  and  conflict  of  judgment.  I  say  fundamental,  because 
this  conflict  has,  in  fact,  grown  out  of  radically  different  con- 
ceptions of  the  Constitution  as  an  organic  law,  and  of  the  states 
as  essentially  sovereign  or  essentially  subordinate.  Yet  I 
drink  it  may  be  said,  without  any  doubt  as  to  the  correctness 
of  the  statement,  that,  so  far  as  the  Supreme  Court  of  the 
United  States  can  establish  a  principle  and  rule  of  construe- 


364  PRIVATE   CORPORATIONS. 

tion,  all  these  disputes  have  been  finally  settled,  and  settled 
against  the  claims  of  state  sovereignty. 

§  562.  The  whole  subject  divides  itself  into  three  heads, 
which  are,  in  fact,  entirely  independent  of  each  other,  and 
which  ought  to  be  separately  considered,  even  at  the  risk  of 
some  repetition.      These  divisions  are  the  following  : 

(1.)  Is  the  charter  granted  by  the  legislature,  in  its  general 
scope  and  design,  so  far  as  it  confers  franchises  upon  the  cor- 
Doration  for  the  accomplishment  of  the  general  purposes  of  its 
creation,  a  contract  between  the  company  and  the  state,  the 
obligation  of  which  the  latter  may  not  impair  ? 

(2.)  Assuming  that  the  preceding  question  be  answered  in 
the  affirmative,  then  are  the  collateral  stipulations  which  may 
be  inserted  in  the  charter,  which  are  not  necessary  for  the 
accomplishment  of  the  general  design  of  the  corporation,  but 
which  may  be  very  beneficial  thereto,  and  may  render  the 
franchises  more  valuable,  —  are  they  contracts  equally  binding 
upon  the  state  ?  To  illustrate :  if  in  chartering  a  bank  the 
legislature  had  stipulated  that  only  a  certain  amount  of  tax 
should  be  levied  upon  the  institution  ;  or,  if  in  chartering  a 
toll-bridge  company,  a  provision  had  been  inserted  that  no 
other  bridge  should  be  erected  within  certain  distances  of  the 
one  authorized  by  the  statute,  would  these  limitations  be  bind- 
ing upon  the  state  ? 

(3.)  Are  there  any  implied  contracts  or  agreements  on  the 
part  of  the  state,  growing  out  of  the  express  language  of  char- 
ters, and  of  the  general  objects  and  designs  for  which  corpora- 
tions are  created  ? 

As  before  remarked,  these  divisions  are  independent  of  each 
other.  The  first  question  might  be  answered  in  the  affirma- 
tive, and  both  the  others  in  the  negative.  A  neglect  to  keep 
these  several  propositions  separate  and  distinct  has  produced, 
and  can  only  produce,  confusion  and  uncertainty. 

§  563.  (1.)  The  charter  of  a  private  corporation,  whether  a 
jpecial  statute  or  a  general  law,  is,  in  its  general  scope  and 
design,  and  so  far  as  it  confers  franchises  for  the  accomplish- 
ment of  the  general  objects  of  the  association,  a  contract,  the 
obligation  of  whicr  *he  state  may  not  impair. 


OBLIGATION  OF   CONTRACTS.  365 

This  proposition  may  be  considered  as  settled  ;  as  an  estab- 
lished principle  of  our  constitutional  law.  The  number  of  ju- 
dicial decisions  in  which  it  is  expressly  affirmed,  or  implicitly 
assumed,  is  very  great.  I  shall  not  attempt  to  burden  the 
memory  or  attention  of  the  reader  by  a  reference  to  all  these 
<?ases.  The  judgments  of  the  Supreme  Court  of  the  United 
States,  and  a  few  recent  opinions  of  state  tribunals,  will  suf- 
ficiently indicate  the  results  which  have  been  reached  through 
a  long  forensic  and  judicial  controversy. 

§  564.  The  question  first  arose  in  a  formal  manner  in  the 
leading  case  of  Dartmouth  College  v.  Woodward1  (1819). 
The  facts  necessary  to  be  stated  are  few.  During  the  colonial 
times,  the  Crown  of  Great  Britain  had  granted  a  charter  in- 
corporating Dartmouth  College,  specifying  the  number  of 
trustees,  how  they  were  to  be  elected  and  hold  their  offices, 
their  powers,  and  the  like.  The  legislature  of  New  Hamp- 
shire subsequently  passed  a  statute  modifying  this  charter  in 
many  important  particulars,  and  making  great  changes  in  the 
organization  of  the  institution.  The  case  turned  upon  the  va- 
lidity of  this  statute.  The  Supreme  Court  examined  several 
subordinate  points  before  arriving  at  the  vital  one.  Thus, 
they  determined  that  a  college  is  a  private  and  not  a  public 
corporation  ;  that  the  state  succeeding  to  the  rights  of  the 
British  Crown  over  the  subject,  was  as  much  bound  by  the 
charter  as  though  it  had  issued  from  the  state  legislature.  The 
court  then  passed  upon  the  nature  of  a  charter.  Chief  Jus- 
tice Marshall  delivered  the  opinion,  and  held  that  a  charter  is 
a  contract,  the  consideration  on  the  part  of  the  corporation 
being  the  benefits  which  they  are  supposed  to  confer  upon  the 
public  at  large.  He  summed  up  his  argument  as  follows  : 2 
"  This  is  plainly  a  contract  to  which  the  donors,  the  trustees, 
and  the  crown  (to  whose  rights  and  obligations  New  Hamp- 
shire succeeds)  were  the  parties.  It  is  a  contract  made  on  a 
valuable  consideration.  It  is  a  contract  for  the  security  and 
disposition  of  property.  It  is  a  contract,  on  the  security  of 
which  real  and  personal  estate  has  been  conveyed  to  the  cor- 
poration. It  is,  then,  a  contract  within  the  letter  of  the  Con- 
1  4  Wheaton'3  R.  518.  2  ibid.  643. 


366  PRIVATE   CORPORATIONS. 

Btitution,  and  within  its  spirit  also."  Opinions  were  also  de- 
livered by  Mr.  Justice  Washington  and  by  Mr.  Justice  Story 
to  the  same  effect.  The  court  therefore  adopted  and  an- 
nounced the  principle  as  the  ground  of  their  judgment  — ratio 
decidendi  —  that  a  private  charter  is  a  contract  between  the 
state  and  the  corporation.  The  statute  of  New  Hampshire 
making  chancres  in  the  organization  of  Dartmouth  College 
was  declared  to  impair  the  obligation  of  the  contract,  and  to  be 
absolutely  void.  The  Dartmouth  College  case  has  always 
been  regarded  as  authoritative,  and  has  been  followed  by  the 
same  high  tribunal  in  all  subsequent  decisions,  and,  with  some 
exceptions  to  be  noticed,  by  the  state  courts. 

§  565.  In  The  Providence  Bank  v.  Billings1  (1830),  the 
court,  by  Chief  Justice  Marshall,  say:  2  "  It  has  been  settled 
that  a  contract  entered  into  between  a  state  and  an  individual, 
is  as  fully  protected  by  the  tenth  section  of  the  first  article  of 
the  Constitution,  as  a  contract  between  two  individuals  ;  and 
it  is  not  denied  that  a  charter  incorporating  a  bank  is  a  con- 
tract." 

Again,  the  same  doctrine  was  affirmed  in  the  Planters' 
Bank  v.  Sharp3  (1848).  In  this  case  it  appeared  that  the 
bank  had  been  chartered  in  Mississippi.  The  act  of  incorpo- 
ration contained  the  following  clauses  descriptive  of  the  general 
powers  of  the  institution  :  The  bank  shall  have  power  "  to 
possess,  receive,  retain  and  enjoy  lands,  ....  goods, 
chattels,  and  effects  of  what  kind  soever,  and  the  same  to 
grant,  alien,  or  dispose  of  for  the  good  of  the  bank ;  also  to 
discount  notes  and  bills  of  exchange,  and  to  make  loans,"  etc. 
A  statute  was  subsequently  passed  forbidding  the  bank  to 
transfer  any  note  or  other  evidence  of  debt.  The  Supreme 
Court  held  the  latter  statute  void,  as  it  impaired  the  obligation 
of  a  contract. 

§  566.  Passing  to  a  few  recent  decisions  of  state  courts,  we 
•mail  find  the  same  doctrine  affirmed  with  equal  force  and 
directness.  In  Backus  v.  Lebanon4  (1840),  the  Supreme 
Court  of  New  Hampshire  declared  that  the  charter  of  a  turn- 

i  4  Peters'  R.  514.  2  Ibid.  560. 

3  6  Howard's  R  301.  «  11  New  Hamp.  R.  19. 


OBLIGATION   OF   CONTRACTS.  367 

pike  company  is  a  contract,  and  protected  by  the  Constitution 
of  the  United  States.  The  Supreme  Court  of  Vermont  as- 
sented to  the  doctrine  in  Grammar-School  v.  Burt1  (1839). 
In  Michigan  State  Bank  v.  Hastings2  (1844),  the  Supreme 
Court  of  Michigan  held  that  the  charter  of  a  bank  is  a  con- 
tract, and  that  where  such  charter  contains  no  reservation  of 
the  power  to  repeal,  a  repealing  statute  is  void.  The  court 
say  :  "  If  there  is  any  one  question  more  firmly  settled  than 
another,  it  is  that  a  private  corporation,  whether  civil  or  elee- 
mosynary, is  a  contract  between  the  government  and  the  cor- 
porators; and  the  legislature  cannot  repeal,  impair,  or  alter 
the  rights  and  privileges  conferred  by  the  charter,  against  the 
consent  and  without  the  default  of  the  corporation  judicially 
declared  and  ascertained."  In  Bruffitt  v.  The  Great  West- 
ern Railroad  Company  3  (1861),  the  Supreme  Court  of  Illi- 
nois gave  their  assent  to  the  doctrine  as  applied  to  a  railway 
corporation.  They  say  :  "  This  rule  has  been  uniformly  ad- 
hered to  by  the  Supreme  Court  of  the  United  States,  and  is 
recognized  by  the  supreme  judicial  tribunals  of  the  various 
states  of  the  Union  as  undoubted  law,  and  it  may  be  regarded 
as  the  settled  law  of  the  country."  In  The  Commonwealth 
v.  The  New  Bedford  Bridge  Company4  (1854),  the  Supreme 
Court  of  Massachusetts  applied  the  principle  to  the  charter  of 
a  bridge  company. 

§  567.  In  the  Matter  of  Oliver  Lee  and  Company's  Bank5 
(1860),  the  Court  of  Appeals  of  New  York  said,  by  Mr. 
Justice  Denio :  "  Certain  principles  have  been  established  by 
the  Federal  Supreme  Court,  and  are  no  longer  subjects  of  con- 
troversy. Thus  it  has  been  adjudged  that  an  executed  grant 
is  as  fully  within  the  constitutional  protection  as  an  executory 
agreement.  Then  the  provision  is  not  limited  to  dealings  be- 
tween individuals,  but  extends  equally  to  contracts  between 
the  states  and  private  persons ;  no",  in  respect  to  contracts  to 
which  the  state  is  a  party,  is  it  confined  to  such  as  relate  to 
definite  pecuniary  obligations,  or  to  specific  real  or  personal 
property.    It  embraces  charters  and  grants  of  corporate  powers 

1  11  Vermont  R.  632.  2  i  Douglas'  R.  225. 

8  25  Illinois  R.  353.  4  2  Grays  R.  339.  5  7  Smith's  R.  9. 


368  PRIVATE    CORPORATIONS. 

and  privileges  when  conferred  for  private  and  pecuniary  ob- 
jects. And  it  also  applies  to  corporations  created  under  gen- 
eral laws.  Such  statutes  are  considered  as  propositions  ex- 
tended to  private  citizens;  and  when  they  have  been  accepted, 
and  a  corporation  has  been  organized  pursuant  to  their  pro- 
visions, a  contract  between  the  state  and  the  private  adven- 
turers is  created,  which  is  equally  inviolable  as  the  terms  of  a 
charter  granted  by  special  statute." 

In  Bank  of  Pennsylvania  v.  The  Commonwealth1  (1852), 
Mr.  Justice  Black,  certainly  no  advocate  of  ultra  national 
views,  used  the  following  expressive  language  :  "  That  an  act 
of  incorporation  is  a  contract  between  the  state  and  the  stock- 
holders, is  held  for  settled  law  by  the  Federal  courts  and  by 
every  state  court  in  the  Union.  All  the  cases  on  the  subject 
are  saturated  with  this  doctrine.  It  is  sustained,  not  by  a  cur- 
rent, but  by  a  torrent  of  authorities.  No  judge  who  has  a  de- 
cent respect  for  the  principle  of  stare  decisis,  —  that  great 
principle  which  is  the  sheet-anchor  of  our  jurisprudence, — 
can  deny  that  it  is  immovably  established." 

§  568.  Notwithstanding  the  current,  or,  as  Mr.  Justice 
Black  calls  it,  the  torrent  of  authorities,  a  persistent  attempt 
was  made  a  few  years  since  by  the  Supreme  Court  of  Ohio  to 
undo  all  this  work,  and  to  establish  the  doctrine  that  charters 
are  not  contracts.  Certain  banks  had  been  organized  in  Ohio 
under  a  general  statute.  The  legislature  subsequently  made 
some  important  changes  in  their  charters.  The  question  was 
raised  for  judicial  decision,  whether  these  latter  acts  of  the 
state  were  valid  or  void.  The  Supreme  Court  of  Ohio  held 
them  all  valid  in  the  cases  of  De  Bolt  v.  The  Ohio  Life  Insur- 
ance Company,2  Mechanics'  and  Traders'  Bank  v.  De  Bolt,3 
Knoup  v.  The  Piqua  Bank,4  and  the  Toledo  Bank  v.  Bond.5 
In  some  of  these  cases  the  Ohio  judges  made  a  very  elaborate 
argument  to  show  that  Chief  Justice  Marshall  and  all  the 
other  judges  of  the  Supreme  Court  of  the  United  States  had 
been  wrong  ;  that  a  charter  had  never  been  directly  decided 
to  be  a  contract ;    that  a  charter  is  not  a  contract,  because 

-  7  Harris'  R.  144.  2  i   Ohio  State  R.  563.         3  Ibid.  591. 

4  Ibid.  603.  5  Ibid.  622. 


OBLIGATION   OF  CONTRACTS.  369 

there  is  no  consideration,  and  there  are  no  parties  until  the 
corporation  has  been  called  into  being  by  the  very  charter ; 
that  a  charter  is  an  act  of  the  state's  sovereignty  conferring 
certain  privileges  which  the  same  sovereign  state  may  at  any 
time  withdraw.  These  decisions  were  made  in  1853.  Some 
of  the  cases,  however,  were  carried  to  the  Supreme  Court  of 
the  United  States,  where  the  sophistry  of  the  Ohio  judges  was 
brushed  away,  and  the  rule  as  originally  laid  down  in  Dart- 
mouth College  v.  Woodward  was  affirmed.1 

§  569.  (2.)  It  being  settled  that  the  charter  itself —  the 
grant  of  franchises  by  the  state  to  the  corporation,  by  means 
of  which  the  latter  is  enabled  to  pursue  and  accomplish  the 
general  objects  of  its  creation  —  is  a  contract,  the  second 
question  remains  to  be  considered,  —  are  all  the  collateral  stip- 
ulations which  may  have  been  inserted  in  this  charter,  which 
are  not  necessary  to  the  existence  and  objects  of  the  corpora- 
tion, but  may  aid  in  promoting  its  success,  and  which  are  re- 
strictions upon  the  legislative  powers  of  the  state,  —  are  they 
also  contracts  ?  This  question  has  given  rise  to  a  vast  amount 
of  judicial  conflict ;  and  although  it  is  now  settled,  as  I  think, 
it  was  not  put  to  rest  without  great  discussion  and  much  oppo- 
sition of  opinion.  Still,  the  decided  preponderance  of  authority 
among  the  state  courts,  and  an  uniform  course  of  decision  in 
the  national  Supreme  Court,  have  pronounced  an  affirmative 
answer  to  this  question,  and  have  placed  these  collateral  stipu- 
lations upon  the  same  footing  as  the  general  grant  of  franchises 
.  in  the  charter. 

§  570.  The  collateral  stipulations  of  this  character  which 
have  been  generally  inserted  in  charters,  may  be  grouped  into 
two  classes  :  those  which  limit  the  state's  power  of  taxation, 
and  those  which  limit  the  state's  right  of  eminent  domain.  To 
illustrate :  if  a  state  should  incorporate  a  bank  with  ordinary 
banking  franchises,  and  should  add  in  the  charter  that  the  rate 
of  taxation  imposed  upon  the  institution  should  never  exceed 
a  certain  specified  amount ;  or  if  a  state  should  incorporate  a 

1  Piqua  Bank  v.  Knoup,  16  Howard's  R.  369  ;  Ohio  Life  Insurance 
and  Trust  Company  v.  De  Bolt,  16  Howard's  R.  416;  Dodge  v.  Woolsey, 
18  Howard's  R.  331. 

24 


370  PRIVATE   CORPORATIONS. 

toll-bridge  company  with  the  ordinary  franchises  necessary  tc 
enable  the  corporation  to  erect  and  maintain  a  bridge  at  a  cer- 
tain place,  and  to  take  tolls  thereon,  and  should  add  a  clause 
in  the  charter,  declaring  that  no  other  bridge  should  be  elected 
within  certain  distances  up  and  down  the  stream  ;  it  is  plain 
that  neither  of  these  stipulations  would  be  necessary  to  the 
existence  and  the  accomplishment  of  the  objects  of  these  re- 
spective corporations.  The  bank  might  carry  on  all  legitimate 
banking  business  without  any  limitation  upon  the  rate  of  tax- 
ation applicable  to  it ;  the  bridge  company  might  build  and 
maintain  their  structure,  and  collect  tolls  from  all  who  cross, 
although  there  were  a  dozen  rival  bridges.  But  it  is  plain 
that  these  and  similar  provisions  in  charters  might  be,  and 
probably  would  be,  very  advantageous  to  the  particular  cor- 
porations. At  the  same  time  they  would  have  the  effect,  if 
operative,  to  limit  and  restrain  two  important  functions  of  the 
state  government,  —  that  of  taxation,  and  that  of  eminent  do- 
main. Can  a  state  legislature  thus  bind  itself  and  all  future 
legislatures  ;  or,  in  other  words,  are  these  and  similar  clauses 
contracts  between  the  state  and  the  corporation,  and  thus 
within  the  protection  of  the  United  States  Constitution  ?  To 
answer  this  question  satisfactorily,  we  must  refer  to  decided 
cases,  and  especially  to  those  in  the  highest  court  of  the  nation. 

§  571.  In  Gordon  v.  The  Appeal  Tax  Court1  (1845),  the 
Supreme  Court  of  the  United  States  gave  effect  to  a  statute 
of  Maryland  restricting  the  legislative  power  of  taxing  partic- 
ular banks.  Certain  banks  had  been  incorporated.  In  1821 
a  law  was  passed  continuing  their  charters  to  1845,  upon  con 
dition  that  they  would  construct  a  certain  road,  and  pay  a 
school  tax.  This  statute  also  declared  that  if  any  of  the  banks 
accepted  and  complied  with  the  terms  and  conditions  of  the 
act,  the  faith  of  the  state  was  pledged  not  to  impose  any  fur- 
ther tax  or  burden  upon  them.  The  stipulation  was  held  by 
the  court  to  be  a  contract  and  within  the  constitutional  pro- 
tection. A  subsequent  law  of  the  state  imposing  a  tax  was 
adjudged  invalid. 

§  572.  The  question  was  directly  presented  in  Woodruff  t 

I  3  Howard's  K.  133. 


OBLIGATION   OP   CONTRACTS.  371 

Trapimll1  (1850).  The  legislature  of  Arkansas  had,  in  1836, 
:hartered  a  bank  whose  whole  capital  belonged  to  the  state. 
One  clause  of  the  charter  provided  "  that  the  bills  and  notes 
of  the  said  institution  shall  be  received  in  payment  of  all  debts 
due  to  the  State  of  Arkansas."  In  1845  this  clause  was  iv- 
pealed.  The  Supreme  Court  of  the  United  States  held  that 
this  stipulation  in  the  original  charter  constituted  a  contract 
between  the  state  and  the  holders  of  these  notes,  and  that  the 
repealing  statute  was  void  as  to  all  notes  issued  prior  to  its 
passage.  The  opinion  of  the  court  was  delivered  by  Mr. 
Justice  McLean,  and  Taney,  C  J.,  Wayne,  McKinley,  and 
"Woodbury,  JJ.,  concurred.  Nelson,  Grier,  Catron,  and  Dan- 
iel, J  J.,  dissented.  The  prevailing  opinion  took  the  broad 
ground  that  states  are  bound  by  all  their  contracts,  and  gave 
no  force  whatever  to  the  claim  that  a  state  cannot  bargain 
away  its  sovereign  capacities  and  functions. 

§  578.  In  The  Richmond  Railroad  Company  v.  The  Louisa 
Railroad  Company2  (1851),  the  Supreme  Court  again  con- 
sidered the  question,  without  directly  passing  upon  it.  The 
legislature  of  Virginia  had  incorporated  the  Richmond,  Fred- 
ericksburg and  Potomac  Railroad  Company,  whose  track  and 
route  ran  northwardly  from  Richmond  to  the  Potomac  River. 
The  charter  contained  a  clause  to  the  effect  that  the  legislature 
would  not  allow  any  other  railroad  to  be  constructed  between 
those  places  or  any  portion  of  that  distance,  the  probable  effect 
of  which  would  be  to  diminish  the  number  of  passengers  travel- 
ling on  the  first  named  road,  or  to  compel  said  company  to  re- 
duce the  rates  of  fare  in  order  to  retain  its  passenger  traffic. 
The  legislature  afterwards  incorporated  the  Louisa  Railroad 
Company,  whose  track  and  route  ran  in  a  general  easterly  and 
westerly  direction,  and,  coming  from  the  west,  struck  the  track 
of  the  Richmond  road  at  right  angles  at  some  distance  from 
Richmond,  crossed  said  track,  turned  and  ran  into  that  city. 
The  two  roads  were,  therefore,  parallel  for  a  short  distance, 
while  their  general  direction  was  at  right  angles,  and  there 
could  be  no  competition  as  to  any  through  travel,  and  none  as 
to  way  traffic  except  for  a  small  portion  of  the  route.  The 
i  10  Howard's  R.  190.  2  13  Howard's  R.  71. 


372  PRIVATE   CORPORATIONS. 

contention  was  that  the  latter  act  of  incorporation  impaired  the 
obligation  of  the  contract  contained  in  the  former.  It  will  be 
noticed  that  the  general  franchises  of  the  first  road  were  in  no 
way  interfered  with  ;  all  that  could  be  affected  was  the  right 
growing  out  of  the  collateral  stipulation.  Had  the  Supreme 
Court  decided  this  stipulation  to  be  no  contract,  and  therefore 
not  binding  on  the  state,  there  would  have  been  an  end  of  the 
case.  But  the  court  assumed  the  stipulation  to  be  a  valid  con- 
tract, and  therefore  binding  upon  the  state,  and,  from  a  con- 
struction of  the  language  of  the  acts,  simply  held  that  the 
second  charter  did  not  impair  the  obligation  of  the  first ;  be- 
cause it  did  not  appear  that  the  company  formed  under  this  sec- 
ond charter  would  interfere  with  the  passenger  traffic  of  the  first 
road.  This  conclusion  seems  to  be  entirely  correct ;  yet  from 
it  three  able  judges,  McLean,  Wayne,  and  Curtis  dissented, 
holding  both  that  the  stipulation  was  a  contract,  and  that  the 
subsequent  act  of  incorporation  impaired  its  obligation. 

§  574.  I  now  pass  to  some  decisions  of  state  courts  involving 
this  question.  In  The  Piscataqua  Bridge  v.  The  New  Hamp- 
shire Bridge  1  (1834),  the  subject  came  before  the  Supreme 
Court  of  New  Hampshire.  The  plaintiffs  had  been  chartered 
as  a  bridge  company ;  and  the  exclusive  right  had  been  given 
them  to  erect  and  maintain  a  toll-bridge  within  certain  limits, 
which  bridge  they  had  erected.  The  legislature  subsequently 
incorporated  the  defendants,  and  authorized  them  to  build  a 
bridge  over  the  same  stream  and  within  the  prescribed  limits. 
This  latter  statute  made  no  provision  for  any  compensation  to 
be  paid  to  the  plaintiffs.  The  defendants  were  proceeding  to 
erect  their  bridge.  The  plaintiffs  thereupon  commenced  the 
suit  to  restrain  this  erection.  In  delivering  the  opinion  of  the 
court,  Mr.  Justice  Parker  held  the  following  propositions : 
That  the  exclusive  grant  to  the  plaintiffs  was  a  contract  as  much 
as  the  mere  grant  of  the  franchise  to  erect  and  maintain  the 
bridge  ;  that  the  legislature  could  not  impair  the  obligation  of 
this  contract ;  that  the  bridge  of  the  defendants,  erected  by 
them  without  paying  any  compensation  to  the  plaintiffs,  would 
be  an  impairing  the  obligation  of  the  contract ;  and  that,  there* 
i  7  New  Hamp.  R.  35. 


OBLIGATION  OF  CONTRACTS.  373 

fore,  the  erection  must  be  restrained.  In  the  course  of  his 
opinion  the  judge  discussed  some  questions  not  involved  in  the 
case,  but  which  have  a  general  interest.  He  held  that  the 
legislature,  under  its  right  of  eminent  domain,  would  have  had 
the  power  to  authorize  the  second  bridge  upon  providing  for 
compensation  to  be  ascertained  and  given  to  the  plaintiffs  for 
the  injury  to  their  rights,  in  the  same  manner  that  all  or  any 
private  property  may  be  taken  for  public  uses  upon  the  pay- 
ment of  compensation  ;  also,  that  the  plaintiffs'  charter  could 
not  be  construed  as  restraining  the  legislature  from  exercising 
its  right  of  eminent  domain  upon  making  compensation  ;  and 
he  added,  that,  if  the  charter  had  contained  such  a  stipulation, 
the  restriction  would  be  a  nullity,  for  he  was  of  opinion  that  a 
state  could  not  thus  bargain  away  its  sovereign  prerogatives. 

§  575.  In  Brewster  v.  Hough  1  (1839),  the  same  question 
again  came  before  the  same  court ;  and  here  also  the  opinion 
expressed  was  confessedly  unnecessary  to  the  decision.  The 
case  involved  the  subject  of  taxation.  Mr.  Chief  Justice  Par- 
ker said :  "  The  power  of  taxation  is  essentially  a  power  of 
sovereignty,  or  eminent  domain  ;  and  it  may  well  deserve  con- 
sideration whether  this  power  is  not  inherent  in  the  people 
under  a  republican  form  of  government,  and  so  far  inalienable 
that  no  legislature  can  make  a  contract  by  which  it  shall  be 
surrendered,  without  express  authority  for  that  purpose  in  the 
Constitution.'"  He  adds:  "Let  it  be  distinctly  understood 
that  we  do  not  intend  to  suggest  a  doubt  of  the  right  of  a 
legislature  in  divers  instances  to  make  contracts  which  shall 
bind  future  legislatures."  He  then  refers  to  the  previous  de- 
cision in  relation  to  the  toll-bridge,  and  proceeds  :  "But  to 
hold  that  the  legislature  cannot  make  a  grant  whereby  the 
property  shall  be  exempted  from  public  use,  and  to  hold  also 
that  they  cannot  contract  to  exonerate  the  property  of  citizens 
from  taxation,  and  thereby  bind  future  legislatures,  by  no 
means  indicates  an  opinion  that  the  legislature  have  the  right 
to  rescind  or  abrogate  grants  of  land  and  franchises,  or  con- 
tracts lawfully  entered  into  by  a  preceding  legislature 

There  is  a  material  difference  between  the  right  of  a  legisla- 
i  10  New  Hamp.  R.  138. 


874  PRIVATE   CORPORATIONS. 

ture  to  grant  lands,  or  corporate  powers,  or  money,  and  the 
right  to  grant  away  essential  attributes  of  sovereignty,  or  rights 
of  eminent  domain.  These  do  not  seem  to  furnish  the  subject- 
matter  of  a  contract." 

§  576.  Again  in  Backus  v.  Lebanon  1  (1840),  the  same 
court  approved  of  the  doctrine  stated  in  the  foregoing  pas- 
sages, although  in  this  instance  also  such  an  expression  of 
opinion  was  unnecessary.  It  is  evident,  therefore,  that  in 
New  Hampshire,  although  the  question  has  not  been  directly 
presented  for  decision,  the  Supreme  Court  has  repeatedly  as- 
sumed and  advocated  the  principle  that  collateral  stipula- 
tions in  charters  which  limit  the  legislative  power  of  the  state 
over  taxation  and  the  right  of  eminent  domain,  are  not  con- 
tracts. 

§  577.  The  Supreme  Court  of  Massachusetts  examined  this 
subject  at  great  length  and  with  much  ability,  in  Boston  and 
Lowell  Railroad  Company  v.  Salem  and  Lowell  Railroad  Com- 
pany2 (1854).  The  plaintiffs  had  been  incorporated  in  1830 
to  construct  and  maintain  a  railway  from  Boston  to  Lowell. 
The  charter  contained  the  following  clause  :  "  No  other  rail- 
road than  the  one  hereby  granted  shall,  within  thirty  years 
from  the  passage  of  this  act,  be  authorized  to  be  made  leading 
from  Boston  to  Lowell."  The  defendants'  road  had  been 
authorized,  without  any  compensation  to  the  plaintiff's,  to  run 
between  the  same  places.  The  court  held  this  clause  a  con- 
tract, and  binding  on  the  legislature,  although  their  attention 
was  strongly  directed  to  the  argument  that  a  legislature  cannot 
cede  away  its  rights  of  eminent  domain.  At  the  same  time, 
the  court  held  that  the  second  road  might  be  constructed,  if 
provision  had  been  made  to  pay  the  plaintiffs  a  suitable  com- 
pensation for  the  invasion  of  their  rights.  In  other  words,  it 
was  held  that  the  language  of  the  restrictive  clause  did  not 
amount  to  a  complete  renunciation  of  the  state's  rights  of  emi- 
nent domain. 

The  Supreme  Court  of  Connecticut  adopted  the  same  doc- 
trine in  East  Hartford  v.  Hartford  Bridge  Company3  (1845). 

In  the  case  of  The  Bank  of  the  Republic  v.  The  County  of 
.  11  New  Hamp.  Pt.  19.  *  2  Gray's  R.  1.  3  17  Conn.  R.  78. 


OBLIGATION   OF   CONTRACTS.  37.5 

Hamilton1  (1858),  the  Supreme  Court  of  Illinois  seems  to 
lean  in  favor  of  the  principle  announced  by  the  New  Hamp- 
shire court,  that,  in  incorporating  a  bank,  the  state  cannot 
limit  its  powers  of  taxation  ;  although  it  must  be  confessed, 
this  conclusion,  if  reached  at  all,  is  reached  in  a  very  blind  and 
halting  manner. 

§  578.  In  Pennsylvania  the  question  has  repeatedly  arisen. 
The  first  case  in  order  is  Easton  Bank  v.  The  Commonwealth  2 
(1849).  The  bank  had  been  incorporated,  among  others, 
under  a  general  statute.  This  statute  provided  that  these 
banks  should  be  created  "  upon  condition  "  that,  among  other 
things,  they  should  pay  a  certain  amount  of  tax.  Subsequently 
the  legislature  raised  the  rate  of  taxation,  and  the  contention 
was  that  the  statute  making  this  increase  in  the  rate  was  void. 
The  court  held  it  valid,  because  the  original  law  under  which 
the  banks  were  organized,  contained  no  stipulation  that  the  tax 
should  not  be  changed.  With  this  decision  I  entirely  agree  ; 
but  the  court  also  made  some  observations  which  would  imply 
that  even  had  the  charter  contained  such  an  express  restriction, 
it  would  not  have  been  binding. 

In  Motfr  v.  The  Pennsylvania  Railroad  Company 3  (1858), 
the  Supreme  Court  of  that  state  distinctly  and  emphatically 
took  the  ground  that  a  legislature  has  no  power  to  alienate  any 
of  the  rights  of  sovereignty — such  as  that  of  taxation  —  so  as 
to  bind  future  legislatures,  and  that  any  contract  purporting  to 
have  such  an  effect  is  void  ;  that  the  rights  of  sovereignty  are 
a  trust,  to  be  exercised  for  the  benefit  of  the  people,  not  to 
be  abandoned  or  bargained  away,  at  the  discretion  of  their 
agents. 

§  579.  But  in  the  Iron  City  Bank  v.  Pittsburg4  (1860),  the 
same  court  receded  from  the  ground  taken  by  them  in  the  case 
last  cited,  and  held  the  following  to  be  the  rules  of  law  which 
are  authoritative  throughout  the  country :  "  A  grant  of  land 
or  of  corporate  franchises  by  an  act  of  legislation,  is  a  contract 
between  the  state  and  the  grantee,  the  obligation  of  which  a 
subsequent  legislature  cannot  impair.     If  the  legislature,  in 

1  21  Illinois  R.  53.  2  io  Barr's  R.  442. 

3  6  Casey's  R.  9.  4  i  VVright's  R.  34  D. 


376  PRIVATE   CORPORATIONS. 

creating  a  corporation,  prescribe  a  rate  of  taxation,  and  ex 
pressly  release  the  power  to  impose  further  taxes,  or  do  not 
expressly  reserve  the  power  to  themselves,  a  subsequent  tax- 
law  does  impair  the  obligation  of  the  contract  and  is  void. 
The  evident  effect  of  these  propositions  is  to  place  the  taxing 
power  of  the  state  government  at  the  disposal  of  the  contract- 
ing parties.  The  legislature  representing  the  people  are  one 
of  the  contracting  parties  ;  the  corporators  are  the  other.  The 
theory  is  that  the  legislature  represents  the  people  for  the  pur- 
pose of  making  contracts  as  well  as  of  making  laws  ;  that  the 
grant  of  a  franchise  is  not  merely  an  act  of  legislation,  but  is 
also  a  contract,  and  that  the  legislature  holds  the  taxing  power, 
and  therefore  may  bargain  it  away,  precisely  as  they  hold  and 
may  grant  the  power  of  corporate  franchises."  These  conclu- 
sions were  stated  to  be  those  of  a  series  of  decisions  made  by 
the  United  States  Supreme  Court,  whose  authority  was  fol- 
lowed. 

§  580.  A  prolonged  and  somewhat  acrimonious  discussion 
of  the  nature  and  effect  of  collateral  stipulations  in  charters, 
which  purport  in  terms  to  limit  the  legislative  power,  was  a 
very  prominent  event  in  the  judicial  history  of  Ohio.  In  1845 
a  general  banking  law  was  passed,  authorizing  the  incorpora- 
tion of  banks.  The  60th  section  of  this  act  required  the  banks 
to  pay  each  year  six  per  centum  of  their  profits  to  the  state, 
and  declared  that  such  amount  should  "  be  in  lieu  of  all  taxes 
to  which  such  company  or  the  stockholders  thereof  on  account 
of  the  stock  owned  therein,  would  otherwise  be  liable."  Many 
banks  were  organized  and  went  into  operation.  In  the  year 
1851  a  statute  was  passed  by  the  legislature,  having  the  effect 
to  increase  the  rate  of  taxation  laid  upon  these  banks.  In  the 
same  year  a  new  constitution  of  Ohio  was  adopted,  which  re- 
quired the  rate  of  taxation  upon  banks  to  be  made  uniform  with 
all  other  taxes  laid  upon  property.  Pursuant  to  this  constitu- 
tion another  statute  was  passed  in  1852  raising  the  rate  of  tax. 
The  state  officers  having  made  attempts  to  collect  the  increased 
tax,  suits  were  brought  by  certain  banks  to  test  the  validity  of 
the  new  legislation.  The  following  cases  were  carried  to  the 
Supreme  Court  of  Ohio  :  De  Bolt  v.  The  Ohio  Life  Insurance 


OBLIGATION  OF  CONTRACTS.  377 

and  Trust  Company,1  Mechanics'  and  Traders'  Bank  v.  De 
Bolt,2  Knoup  v.  The  Piqua  Bank,3  and  The  Toledo  Bank  v. 
Bond.4  In  two  of  these  cases,  as  has  already  been  mentioned, 
the  court  declared  that  bank  charters  are  not  contracts  ;  but  in 
all  it  held  that  the  stipulation  in  regard  to  taxation  was  not 
binding  on  the  state,  was  not  a  contract  within  the  protection 
of  the  national  Constitution.  The  reasoning  which  supported 
this  conclusion  was  as  follows :  The  states  are  absolutely  sov- 
ereign so  far  as  they  have  not  parted  with  that  sovereignty  to 
the  general  government ;  they  are  absolutely  sovereign  over  the 
subjects  of  taxation  and  eminent  domain  ;  being  thus  sovereign 
they  cannot  relinquish  their  sovereignty ;  one  legislature  can- 
not bind  a  subsequent  legislature  on  these  subjects,  since  the 
subsequent  legislature  as  much  represents  the  sovereign  people 
and  holds  all  its  sovereign  powers,  as  the  former  did.  The 
court,  therefore,  pronounced  the  laws  increasing  the  rate  of 
taxation  to  be  valid. 

§  581.  From  these  decisions,  as  may  well  be  supposed,  an 
appeal  was  taken  to  the  Supreme  Court  of  the  United  States, 
which  in  1853  heard  and  decided  the  case  of  Piqua  Bank  v. 
Knoup.5  The  opinion  was  delivered  by  Mr.  Justice  McLean. 
The  court  overturn  all  the  positions  of  the  Ohio  judges  ;  de- 
clare the  charter  to  be  a  contract ;  pronounce  the  express  col- 
lateral stipulations  contained  in  it  to  be  contracts,  although 
they  restrain  the  legislative  power  of  the  state ;  and  hold  the 
statute  of  1851  increasing  the  tax  to  be  void  as  it  impaired  the 
obligation  of  the  contract.  From  this  judgment  three  members 
of  the  court,  Catron,  Daniel,  and  Campbell  dissented ;  Mr. 
Justice  Campbell  delivering  an  elaborate  opinion,  in  which 
he  adopted  the  reasoning  and  the  conclusions  of  the  Ohio 
judges. 

In  the  year  1855  other  cases  from  Ohio,  involving  the  same 
doctrines,  were  considered  and  determined  by  the  Supreme 
Court,  Dodge  v.  Woolsey,6  Mechanics'  and  Traders'  Bank  v. 
DeBolt,7  and  Mechanics'  and  Traders'  Bank  v.  Thomas.8    The 

1  1  Ohio  State  R.  563.  2  ibid.  591.  3  Ibid.  603. 

4  Ibid.  622.  5  i6  Howard's  R.  369. 

8  18  Howard's  R.  331.  *  Ibid.  380.  8  Ibid.  384. 


378  PRIVATE   CORPORATIONS. 

principle  that  these  collateral  stipulations  in  charters  limiting 
the  taxing  power  are  contracts,  was  again  affirmed  in  the  most 
emphatic  manner.  The  court  also  decided  that  the  new  con- 
stitution of  Ohio  authorizing  and  directing  the  increased  tax, 
did  not  obviate  the  difficulty  ;  holding  that  the  people  of  a  state 
in  their  organic  capacity  are  as  much  bound  by  a  contract  made 
with  their  legislature,  as  the  legislature  itself. 

§  582.  After  these  judgments  of  the  national  tribunal  the 
same  questions  v.  ere  again  presented  to  the  state  judiciary  in 
1856,  in  Matheny  v.  Golden,1  The  State  v.  Moore,2  and  Ross 
County  Bank  v.  Lewis,3  in  which  cases  the  Ohio  court  yielded 
to  the  authority  of  the  decisions  made  by  the  Supreme  Court 
of  the  United  States.  But  in  Sandusky  City  Bank  v.  Wilbor4 
(1857),  and  Skelly  v.  The  Jefferson  Bank*  (1859),  the  state 
court  returned  to  its  former  position ;  declared  the  judgments 
of  the  Supreme  Court  not  binding  upon  it ;  and  sustained  the 
validity  of  the  second  statute. 

§  583.  This  condition  of  resistance  required  another  and 
formal  utterance  from  the  highest  national  tribunal  for  deter- 
mining constitutional  questions.  The  case  of  Skelly  v.  The 
Jefferson  Bank  6  (1861),  was  reviewed  by  the  Supreme  Court 
of  the  United  States  ;  the  reasoning  and  conclusions  adopted 
by  them  in  the  former  cases  were  re-stated  and  re-established  ; 
and  their  judgments  giving  a  construction  to  the  Constitution 
were  declared  to  be  authoritative,  not  only  upon  individuals 
but  upon  the  states. 

Thus  the  right  and  power  of  a  state  to  bind  itself  by  a  con- 
tract which  shall  limit  its  function  of  taxing,  may  be  considered 
as  finally  and  foi*ever  settled  as  a  portion  of  the  political  law  of 
the  United  States. 

§  584.  But  the  Supreme  Court  has  very  recently  reiterated 
its  views  upon  the  compulsive  efficacy  of  all  state  contracts,  in 
The  Binghamton  Bridge  Case7  (1866), — a  case  which,  if 
any  case  could,  would  have  led  the  court  to  modify  and  relax 
its  rule.     In  the  year  1808,  the  legislature  of  New  York  in- 

1  5  Ohio  State  R.  3G1.  2  Ibid.  444.  3  Ibid.  447. 

*  7  Ibid.  481.  5  9  Ibid.  606.  6  1  Black's  R.  436 

7  3  Wallace's  R.  51. 


OBLIGATION    OF   CONTRASTS.  379 

corporated  a  company  to  build  and  maintain  a  toll-bridge  over 
the  Chenango  River,  near  its  confluence  with  the  Susquehanna. 
In  a  prior  part  of  the  same  statute,  the  legislature  incorporated 
another  company  to  build  and  maintain  a  similar  bridge  over 
the  Delaware  River.  In  respect  to  this  Delaware  Bridge  Com- 
pany the  statute  provided  as  follows:  "  It  shall  not  be  lawful 
for  any  person  or  persons  to  erect  any  bridge  or  establish  any 
ferry  across  the  Delaware  within  two  miles  either  above  or  be- 
low the  bridge  to  be  erected  and  maintained  in  pursuance  of 
this  act."  Those  provisions  of  the  statute  which  relate  to  the 
Chenango  Company,  provided  that  such  company  "  shall  be 
and  hereby  are  invested  with  all  and  singular  the  powers, 
rights,  privileges,  immunities,  and  advantages  ....  which 
are  contained  in  the  foregoing  incorporation  of  the  Delaware 
Bridge  Company  ;  and  all  and  singular  the  provisions,  sections, 
and  clauses  thereof,  not  inconsistent  with  the  provisions  herein 
contained  shall  be  and  hereby  are  fully  extended  to"  the  Che- 
nango Bridge  Company.  The  latter  company  erected  and  have 
since  maintained  a  toll-bridge.  When  this  bridge  was  erected, 
there  was  a  small  hamlet  at  the  place  ;  the  city  of  Bingham- 
ton  now  covers  the  spot  on  both  sides  of  the  Chenango  River, 
and  this  bridge  is  utterly  inadequate  to  the  wants  of  its  inhab- 
itants. In  1855  the  legislature  of  New  York  granted  a  charter 
to  a  new  company  authorizing  them  to  place  a  bridge  a  few 
rods  from  the  old  one.  This  suit  was  brought  by  the  Chenan- 
go Bridge  Company  to  restrain  the  erection  of  the  new  struc- 
ture. It  will  be  noticed  that  two  points  were  involved :  did 
the  restrictive  clause  in  favor  of  the  Delaware  bridge  in  the 
original  charter  apply  also'to  the  Chenango  bridge ;  and  if  so, 
was  this  clause  a  contract  binding  upon  the  state  ?  The  court 
answered  both  these  questions  in  the  affirmative,  and  held  that 
the  clause  was  a  contract  between  the  state  and  the  Chenango 
Bridge  Company  ;  that  it  restrained  the  state  from  authorizing 
another  bridge  to  be  erected  within  the  specified  limits ;  and 
that  the  new  charter  was  void  as  it  impaired  the  obligation  of 
ihe  contract.  From  this  decision,  Chase,  C.  J.,  and  Grier  and 
Field,  JJ.,  dissented,  not  denying,  however,  the  general  doc- 
trines of  the  court,  but  insisting  that,  from  a  proper  construe- 


380  PRIVATE   CORPORATIONS. 

tion  of  the  language  of  the  charter,  the  Chenango  Bridge  Com* 
pany  did  not  acquire  any  rights  under  this  restrictive  clause 
passed  in  favor  of  the  Delaware  Bridge  Company. 

§  585.  (3.)  It  having  been  settled  that  if  the  charter  con- 
tains uny  express  collateral  stipulations,  they  are  contracts,  and 
binding  upon  the  state,  we  now  inquire  whether  such  collateral 
agreements  will  be  implied  in  favor  of  the  corporation,  from  its 
general  nature,  design,  and  objects.  The  answer  is,  they  will 
not.  The  rule  has  been  firmly  established,  both  in  the  national 
and  in  the  state  courts,  that  the  charter  must  be  construed  more 
strongly  against  the  grantees  ;  that  no  rights  as  against  the 
state  will  arise  under  it  by  mere  implication ;  that  only  such 
stipulations  as  are  plainly  and  expressly  favorable  to  the  cor- 
poration, upon  a  reasonable  construction  of  the  charter,  are  to 
be  regarded  as  contracts  binding  upon  the  state.  These  prop- 
ositions are  sustained  by  many  cases.  I  shall  only  refer  to 
two,  decided  by  the  Supreme  Court  of  the  United  States, 
which  have  been  regarded  as  leading,  and  which  have  been 
followed  without  a  dissent  both  by  the  national  and  the  state 
judiciary. 

§  586.  In  the  Providence  Bank  v.  Billings,1  the  bank  had 
been  incorporated  by  a  charter  entirely  silent  on  the  subject 
of  taxation.  At  the  time  of  incorporation,  a  certain  rate  of 
tax  prevailed  ;  the  rate  was  subsequently  increased  ;  the  bank 
resisted  payment  of  the  additional  tax.  The  court  held  the 
subsequent  statute  valid,  deciding  that,  as  the  charter  con- 
tained no  stipulations  on  the  subject,  none  should  be  implied. 

Again,  in  the  great  case  of  The  Charles  River  Bridge  v 
The  Warren  Bridge,2  the  subject  was  examined  in  an  ex- 
haustive manner,  and  the  rule  was  established  beyond  a  doubt. 
The  Charles  River  Bridge  Company  had  been  incorporated 
by  the  legislature  of  Massachusetts,  with  power  to  erect  and 
maintain  a  toll-bridge.  Their  charter  contained  no  restrictive 
clauses,  and  no  express  limitations  upon  the  legislative  action. 
Amother  company  was  subsequently  chartered  and  authorized 
to  place  a  free  bridge  at  a  very  short  distance  from  the  former 
structure.  The  effect  of  this  free  bridge  would  plainly  be  tc 
1  4  Peters'  R.  514.  2  11  Ibid.  420. 


OBLIGATION   OF   CONTRACTS.  381 

essen,  if  not  to  entirely  destroy,  the  value  of  the  franchises 
held  by  the  Charles  River  Bridge  Company.  The  action  was 
brought  to  restrain  all  proceedings  under  the  second  charter. 
The  Supreme  Court,  in  a  most  elaborate  opinion  by  Chief 
Justice  Taney,  held  that  there  was  no  contract  between  the 
state  and  the  Charles  River  Bridge  Company  to  the  effect 
that  another  viaduct  should  not  be  constructed  ;  that  there 
being  no  express  contract,  none  should  be  implied  ;  and  that 
the  later  charter  was  valid,  as  it  did  not  impair  the  obligation 
of  a  contract.  The  principle  of  these  cases  has  never  been 
departed  from,  either  by  the  national  or  the  state  judiciary  ; 
indeed,  the  tendency  among  many  state  judges  has  been  to 
extend  it  to  an  unwarrantable  length.  The  Supreme  Court 
of  the  United  States  has  very  recently  reaffirmed  this  principle 
of  construction  in  Turnpike  Company  v.  The  State.1 

The  conclusions  from  the  preceding  analysis  are,  that  char- 
ters of  private  corporations  are  contracts ;  that  all  express 
collateral  stipulations  contained  in  such  charters  are  also  con- 
tracts ;  but  that  no  collateral  agreements,  limitations,  and 
restrictions,  by  or  upon  the  state,  will  be  implied  from  the 
nature   and  objects  of  the   corporation. 

6.  Municipal  Corporations. 

§  587.  The  charters  of  municipal  corporations  are  not  con- 
tracts, and  may  therefore  be  altered  or  repealed  at  pleasure,  so 
far  as  the  state  legislature  is  not  restrained  by  the  local  con- 
stitution. The  law  regards  these  public  territorial  bodies  as 
agents  and  instruments  of  the  state  for  the  exercise  of  a  por- 
tion of  its  governmental  functions  in  a  certain  district ;  as 
clothed  with  a  public  trust  analogous  to  that  conferred  upon 
officers  ;  which  agency  or  trust  may  be  revoked,  changed,  less- 
ened, or  increased,  whenever  the  legislature  in  its  discretion 
shall  think  best. 

To  this  principle  there  has  been  an  universal  assent.  No 
case  of  authority,  either  in  the  national  or  the  state  courts, 
has  thrown  a  doubt  upon  the  correctness  of  these  propositions. 
It  is  unnecessary,  therefore,  to  make  any  extended  reference 

1  3  Wallace's  K.  210. 


382  NATURE  OF  THE   OBLIGATION. 

to  judicial  opinions.  One  or  two  citations  will  suffice.  In 
the  Dartmouth  College  case  the  judges  expressly  excepted 
municipal  corporations  from  the  operation  of  the  rule  which 
they  established.1  In  East  Hartford  v.  Hartford  Bridge  Com- 
pany,2 the  Supreme  Court  of  the  United  States  decided  that, 
a  town  being  a  municipal  corporation,  a  grant  to  it  of  a  ferry 
privilege  may  be  revoked.  A  series  of  cases  has  been  deter- 
mined during  the  last  few  years  by  the  highest  court  of  New 
York,  in  which  the  principle  has  been  distinctly  affirmed  and 
applied  to  legislative  acts  modifying  the  charter  and  corporate 
powers  of  New  York  City.  The  last  of  these  cases,  The 
People  v.  Pinkney,3  was  decided  in  1865. 

II.    W7mt  is  the  Obligation  of  a  Contract  which  may  not  be  impaired  ? 

§  588.  Courts,  judges,  and  text  writers  have  been  troubled 
to  find  a  satisfactory  general  answer  to  this  question.  One 
principal  cause  of  the  difficulty  has  been  that  the  simple  in- 
quiry as  to  the  nature  of  the  obligation  has  almost  always  been 
complicated  with  the  further  inquiry,  whether  certain  laws  or 
acts  impaired  that  obligation.  If  we  can  keep  these  questions 
separate,  —  if  we  can  clearly  fix  and  define  the  notion  of  the 
obligation,  we  shall  then  be  prepared  to  determine  with  com- 
parative ease  whether  any  specified  legislative  acts  impair  it. 

Another  source  of  difficulty  lies  in  the  fact  that  "  obliga- 
tion "  as  here  used  is  not  a  word  having  a  technical  meaning 
in  the  English  common  law  ;  it  is  not  a  word  of  art ;  it  does 
not  belong  to  the  professional  vocabulary.  The  common  law, 
it  is  true,  used  the  word  "  obligation  "  as  a  technical  term, 
but  only  to  describe  a  sealed  instrument  of  a  peculiar  form. 

Again,  "  obligation  "  is  a  familiar  English  term,  implying  a 
duty,  —  what  one  ought  to  do,  —  resulting  from  mere  moral 
sanctions.  Thus,  one  is  obliged  to  another,  one  is  under  an 
obligation  to  another,  when  a  duty  more  or  less  pressing,  and 
flowing  from  the  moral  law,  rests  upon  him  towards  that  other. 
The  word,  as  it  occurs  in  the  Constitution,  cannot  be  under- 
stood in  this  broad  and  comprehensive  sense. 

i  4  Wheaton's  R.  659,  694.  2  10  Howard's  R.  511. 

3  5  Tiffany's  R.  377. 


OBLIGATION   OF   CONTRACTS.  383 

§  589.  But  if,  turning  away  from  the  nomenclature  of  the 
English  law,  we  examine  that  of  the  Roman,  we  shall  there 
find  the  word  used  with  a  definite,  technical,  legal  meaning  ; 
and  this  signification  is  the  one  to  be  given  to  the  term  as  it 
appears  in  the  Constitution.  The  later  Roman  jurists,  who 
composed  systematic  treatises,  and  the  codifiers  under  Jus- 
tinian, separated  the  whole  body  of  the  private  jurisprudence 
into  three  grand  divisions :  the  law  pertaining  to  persons  ;  the 
law  pertaining  to  things ;  and  the  law  pertaining  to  actions. 
The  second  of  these  departments  embraced  all  those  rights  and 
duties  which  have  reference  to  things  as  their  objects  ;  and 
these  legal  rights  were  again  subdivided  into  those  which 
amounted  to  dominium,  and  those  which  were  denominated 
obligationes.  The  former  rights  were  analogous  to  our  prop- 
erty, or  ownership,  in  its  various  degrees  and  grades,  and  are 
termed  by  some  modern  jurists  rights  in  rem,  as  they  extend 
over  the  object  of  the  right,  and  avail  against  all  mankind. 
Obligationes  were  rights  availing  only  against  a  particular  per- 
son or  persons,  and  called  by  many  European  writers  rights 
in  personam.  The  obligatio  was,  therefore,  descriptive  of  a 
particular  genus  of  rights ;  but  it  also  had  a  more  restricted 
meaning,  which  appears  to  be  exactly  the  one  intended  in  our 
Constitution.  The  Institutes  defines  the  word  as  follows  : 1 
"  Obligatio  est  juris  vinculum,  quo  necessitate  adstringimur 
alicujus  solvendse  rei  secundum  nostrge  civitatis  jura ;  "  which 
may  be  thus  paraphrased :  Obligation  is  the  bond  or  chain  of 
the  law,  by  which  we  are  through  a  legal  necessity  compelled 
to  the  performance  of  something  according  to  the  rules  of  our 
municipal  law.  It  is  further  said  that  obligations  flow  from 
contracts,  from  quasi-contracts,  from  delicts,  and  from  quasi- 
delicts. 

§  590.  The  point  of  this  definition  is,  that  "  obligation,"  as 
here  used,  is  the  bond  or  chain  of  the  law  ;  it  is  the  compul- 
sive energy  of  the  municipal  law,  called  into  active  force  by 
the  stipulations  of  a  contract.  To  use  logical  terms,  the  law 
is  the  cause,  the  contract  is  the  occasion  of  the  obligation.  In 
the  absence  of  rules  of  the  municipal  law  covering  the  case, 
1  Lib.  3,  tit.  13,  de  obligationibus. 


384  NATURE   OF  THE  OBLIGATION. 

the  most  formal  stipulations  of  parties  would  give  rise  to  no 
obligation  growing  out  of  a  contract,  which  human  sanctions 
can  reach,  however  strong  an  obligation  might  arise  from  the 

7  ©  ©  © 

commands  of  God's  law,  and  be  enforced  by  His  sanctions. 
We  see  this  illustrated  in  a  number  of  cases  ;  a  gaming  con 
tract,  an  usurious  contract,  a  contract  to  procure  prostitution, 
and  the  like,  may  be  concluded  in  the  most  formal  terms,  may 
receive  the  most  deliberate  assent  of  the  parties;  but  the  law 
does  not  add  any  compulsive  force  and  effect  to  these  prom- 
ises ;  the  law  docs  not  create  any  obligation  upon  the  occasion 
of  these  contracts  being  executed. 

© 

§  591.  Much  confusion  has  arisen  upon  this  subject  from 
the  incorrect  use  of  terms,  and  the  incorrect  notions  set  forth 
by  writers  of  repute,  and  particularly  by  Sir  William  Black- 
stone,  who,  as  Austin  says,  represented  the  average  intellect 
and  legal  knowledge   of  his  age.     Blackstone  often  makes  a 

©  ©  © 

distinction  between  rights  resulting  from  the  act  and  operation 
of  the  law,  and  rights  resulting  from  the  act  of  parties.  Thus, 
in  describing  life-estates,  he  divides  them  into  two  general 
classes  :  those  which  flow  from  the  act  of  parties,  and  those 
which  result  from  the  act  and  operation  of  the  law,  —  such  as 
dower  and  curtesy.  This  is  all  irrational  and  absurd.  No 
legal  right  or  duty  whatever  can  proceed  from  any  other 
source  than  the  act  and  operation  of  the  law.  The  acts  of 
men,  who  are  the  subjects  of  that  law,  whether  these  acts  be 
involuntary,  as  deaths  or  births,  or  voluntary,  as  marriages, 
contracts,  testaments,  are  only  the  occasions  which  give  the 
rules  of  the  law  an  opportunity  to  become  effective  and  oper- 
ative in  a  particular  case.  No  one,  not  even  Blackstone, 
would  say  that  the  death  of  the  ancestor  was  the  cause  of  the 
heir's  becoming  owner,  or  that  the  death  of  the  husband  was 
the  cause  of  the  widow's  becoming  a  dowress.  These  instances 
are  plain  ;  but  the  case  is  not  different  when  the  act  is  volun- 
tary.  Two  parties  enter  into  a  contract,  their  wills  agree,  their 
stipulations  are  mutual  ;  but  neither  their  wills  nor  their  stip- 
ulations create  the  right  devolving  upon  one,  nor  the  duty 
resting  upon  the  other.  The  law,  seizing  hold  of  this  union  of 
wills,  this  expressed  assent  of  the  parties,  adds  its  compulsive 


OBLIGATION   OF   CONTRACTS.  385 

energy  to  the  personal  stipulations,  and  creates  the  right  on 
the  one  hand,  and  the  duty  on  the  other.  The  mere  words, 
the  mere  assent,  the  mere  consideration  of  a  contract,  are  in 
themselves  nothing ;  it  is  only  the  law  which  comes  in  and 
declares  that  the  fact  of  such  words,  such  assent,  such  consid- 
eration, shall  give  rise  to  rights  and  duties  ;  it  is  only  the  law, 
I  say,  which  thus  creates  an  obligation  in  a  contract. 

§  592.  My  definition  of  "  the  obligation  of  a  contract  " 
would  therefore  be  as  follows :  First,  the  term  is  not  to  be 
restricted  to  "  duty  "  ;  it  is  to  be  taken  in  its  Roman  sense  as 
including  "  right  "  as  well  as  duty ;  it  is  "  obligation  the  bind- 
ing, —  the  binding  of  two  things  together,  namely,  the  right 
of  one  party  and  the  duty  of  the  other  ;  which  binding  is  done 
by  the  law.  Secondly,  "  the  obligation  of  a  contract "  is, 
therefore,  the  collective  legal  rights  and  duties  which  the 
existing  law  applicable  to  the  contract  raises  or  creates  out  of 
or  from  the  stipulations  of  the  parties  ;  rights  which  it  de- 
volves upon  one  party,  and  corresponding  duties  which  it  lays 
upon  the  other. 

§  593.  I  have  been  thus  particular  in  attempting  to  analyze 
and  define  the  term  "  obligation  of  a  contract,"  because  some 
of  our  most  eminent  jurists  have  been  greatly  troubled  by  the 
phrase.  I  shall  not  refer  to  cases  in  which  judges  have  ex- 
amined the  import  of  the  words  ;  their  number  is  legion  ;  their 
conflict  is  irreconcilable  ;  a  citation  of  them  would  unneces- 
sarily consume  time  and  space.  A  brief  account  of  one  lead- 
ing case  in  the  Supreme  Court  of  the  United  States  will 
sufficiently  indicate  the  difficulty  and  the  opposition  of  views. 
In  Ogden  v.  Saunders  1  (1827),  the  effect  of  a  discharge  under 
a  state  insolvent  law  was  considered.  In  a  former  case,  Sturges 
v.  Crowninshield,2  the  same  court  had  held  that  such  a  statute, 
so  far  as  it  applied  to  preexisting  contracts,  was  void.  Now, 
the  indebtedness  affected  by  the  discharge  had  accrued  subse- 
quently to  the  passage  of  the  state  law.  It  "was  urged  on  be- 
half of  the  creditor  that  the  state  legislation  still  impaired  the 
obligation  of  a  contract.  On  the  other  hand  it  was  claimed 
that,  the  insolvent  law  having  been  in  existence  at  the  time  when 
1  12  Wheaton's  R.  213.  2  4  Wheaton's  R.  122. 

2fi 


386  NATURE  OF  THE   OBLIGATION. 

the  contract  was  made,  its  provisions  were  to  be  taken  as  a 
part  of  the  agreement ;  or,  to  express  the  thought  better,  that 
the  obligation  of  the  contract  was  only  such  a  compulsive  or 
binding  efficacy  as  the  whole  existing  municipal  law  applicable 
thereto  gave  to  the  stipulations  ;  in  other  words,  that  the  obli 
gatioh  flowing  from  the  existing  law,  upon  the  occasion  of  the 
contract,  was  not  absolute  upon  the  debtor,  requiring  him  to 
pay  at  all  events,  but  was  only  qualified,  requiring  him  to  pay 
unless  the  contingencies  should  happen  by  which  he  might  be 
discharged.  The  majority  of  the  court  adopted  this  view. 
Three  judges,  however,  Chief  Justice  Marshall,  and  Justices 
Story  and  Duvall,  were  of  the  opinion  that  the  obligation  in- 
heres in  the  very  stipulations  of  the  contract,  and  that,  no  ref- 
erence having  been  made  in  express  terms  by  the  parties  to 
the  existino-  insolvent  law,  as  limiting  the  extent  of  the  debtor's 
liability,  he  could  not  take  advantage  of  that  statute.  The 
majority  of  the  court  were  plainly  right ;  and  they  established 
a  principle  of  interpretation  which  has  been  generally  assented 
to  by  the  national  and  state  tribunals. 

§  594.  It  may  be  considered,  therefore,  as  settled  that  the 
obligation  of  a  contract  is  not  what  the  parties  have,  in  terms, 
agreed  to  do  or  forbear  ;  but  is  the  legal  effect  given  to  those 
agreements  by  the  whole  of  the  existing  law  applicable  to  such 
contract ;  it  includes  the  rights  and  duties  which  the  whole 
existing  law  creates  from  the  fact  of  such  contract  being  made. 
Thus  in  New  York,  — laying  out  of  view  the  recent  bankrupt 
law  passed  by  Congress,  —  if  A.  make  his  promissory  note, 
whereby  he  promises  to  pay  the  sum  of  one  hundred  dollars  to 
B.  in  one  month  after  the  date  thereof,  there  are  various  ex- 
isting rules  of  the  law  applicable  to  such  a  contract,  and  all 
conspiring  to  create  the  obligation  resulting  therefrom,  —  that 
is,  the  total  sum  of  duties  resting  upon  A.,  and  the  total  sum 
of  rights  devolving  upon  B.  Among  these  rules  are  the  fol- 
lowing :  The  general  rule  that  A.  must  pay  as  he  has  prom- 
ised ;  that  he  has  three  additional  days  after  the  month  hag 
expired  in  which  to  pay;  that  if  six  years  elapse  after  the  note 
becomes  due,  his  liability  is,  in  general,  ended  ;  that  by  follow- 
nag  certain  steps  prescribed  by  statute  he  may  become  abso* 


OBLIGATION  OF   CONTRACTS.  387 

lately  discharged  from  paying.  All  these  various  rules  —  ai  d 
some  others  no  less  important  —  go  to  make  up  the  sum  totai 
of  A.'s  legal  duties  and  of  B.'s  legal  rights,  or,  in  other  words, 
the  obligation  of  this  contract.  Therefore  every  contract  is 
impressed  with  the  binding  effect  of  the  law  existing  at  the 
time  when  it  is  entered  into ;  that  law  creates  and  determines 
the  obligation. 

§  595.  This  principle  applies  as  well  to  those  contracts  which 
are  made  between  a  state  and  private  persons,  as  to  those 
made  between  individuals  alone.  If  a  state  have  passed  any 
general  law  —  like  an  insolvent  or  bankrupt  act  —  permitting 
debtors  to  be  discharged  from  their  debts,  this  law  has  its  effect 
in  determining  the  obligation  of  contracts  entered  into  subse- 
quent to  its  passage.1  In  like  manner  if  a  state,  in  granting  a 
charter  to  a  private  corporation,  reserves  to  itself  in  that  char- 
ter, or  reserves  to  itself  by  a  general  statute  applicable  to  all 
charters,  the  right  to  repeal  or  modify  the  grant,  this  reserva- 
tion enters  into  and  forms  a  part  of  the  obligation,  so  that  a 
subsequent  repeal  or  modification  is  valid.2  Under  the  influ- 
ence of  this  rule  there  is  hardly  a  state  at  the  present  day 
which  grants  private  charters  without  reserving,  in  the  charter 
or  by  general  law,  the  power  to  repeal,  modify,  enlarge,  or 
restrict  the  corporate  powers  and  franchises  which  may  be 
granted. 

§  596.  A  final  and  most  important  question  arises,  whether 
the  remedy  by  which  a  contract  is  enforced,  ever  enters  into 
and  forms  a  part  of  the  obligation  of  such  contract.  This  ques- 
tion has  given  a  vast  amount  of  trouble  to  members  of  the  bar 
and  to  courts  in  the  practical  administration  of  justice.  It  ap- 
pears to  me,  however,  that  the  difficulty  and  conflict  have  re- 
sulted wholly  from  different  meanings  tacitly  given  to  the  word 
remedy ;  and  that  the  general  principle  is  simple  and  plain  ; 
and  that  a  general  doctrine  or  rule  may  be  arrived  at  which 
will  materially  aid  in  the  resolution  of  all  particular  cases.  Let 
us  try  to  reach  this  general  rule  by  the  following  analysis  : 

The  law  consists  in  commands  addressed  to  moral  agents. 

1  Ogden  v.  Saunders,  12  Wheaton's  K.  213. 

2  In  re  Oliver  Lee  &  Co.'s  Bank,  7  Smith's  (N.  Y.)  R.  9. 


388  NATURE  OF  THE  OBLIGATION. 

All  these  commands  have  the  effect  to  raise  le<ial  duties  tie- 
volving  upon  certain  persons,  and  legal  rights  inhering  in  other 
persons.  As  the  persons  upon  whom  the  legal  duties  devolve 
are  free  moral  agents,  they  may  perform  or  refuse  to  perform 
their  duties.  The  law  must,  therefore,  include  some  compul- 
sive means  ;  otherwise  the  command  would  be  merely  the  ex- 
pression of  a  wish.  All  human  laws,  therefore,  in  addition  to 
the  mere  command  to  do  or  to  forbear,  include  a  sanction  bv 
which  such  command  is  to  be  enforced.  This  sanction  is  the 
remedial  portion  of  the  law  ;  and  it  enters  into  the  notion  of 
human  law  as  much  as  the  command  itself  does. 

§  597.  Now  to  apply  this  to  the  case  of  contracts.  Two 
persons  enter  into  a  contract  ;  the  law  by  its  command  obliges 
one  of  these  parties  to  do  the  certain  thing  agreed  upon  ;  the 
law  also  says  to  this  party,  If  you  do  not  perform  the  thing 
commanded,  you  shall  be  subjected  to  a  certain  kind  of  punish- 
ment. This  latter  is  the  sanction,  and  this  sanction  or  remedy 
as  much  forms  a  part  of  the  obligation  of  the  contract  as  does 
the  very  thing  agreed  to  be  done.  In  other  words,  the  parties, 
by  entering  into  a  contract,  create  an  occasion  by  which  the 
commands  of  the  law  come  into  play ;  these  commands  give 
one  party  a  right  as  against  the  other  to  have  a  certain  thing 
done,  and  subject  the  other  to  the  duty  of  doing  that  thing. 
But  this  is  not  all.  The  very  same  contract  gives  to  the  first 
party  the  right  against  the  other  to  say,  If  you  do  not  perform 
exactly  what  you  agreed  to  do,  you  shall  do  something  else 
by  way  of  penalty  or  satisfaction  ;  and  a  corresponding  alter- 
native duty  rests  upon  this  other  party  to  do  the  thing  which 
is  required  by  way  of  penalty  or  satisfaction.  In  other  words, 
the  right  to  the  remedy  is  included  in  the  notion  of  the  obliga- 
tion of  a  contract.  Were  it  otherwise,  the  obligation  would 
be  binding  only  upon  those  parties  who  should  voluntarily  sub- 
mit to  it,  and  the  law,  as  a  compulsive  and  restraining  force, 
would  become  a  mere  nullity. 


OBLIGATION  OF  CONTRACTS.  389 


III.    What  State  Laws  do  impair  the  Obligation  of  Contracts. 

§  598.  We  are  now  to  answer  the  practical  question,  What 
kinds  and  classes  of  state  laws  do  have  the  effect  to  impair  the 
obligation  of  contracts  ?  This  question  is  one  not  easy  to 
answer  in  its  full  extent.  There  may  be  some  state  statutes 
which  plainly  and  unequivocally  have  the  injurious  effect  ;  con- 
cerning which  there  is  no  room  for  argument.  There  mav  be 
others  which  as  plainly  and  unequivocally  do  not  have  the  in- 
jurious effect.  Between  these  two  extremes  there  are  kinds 
and  classes  of  laws  concerning  which  there  may  be  a  doubt, 
there  may  be  room  for  argument,  for  difference  of  opinion 
among  legislators  and  judges.  When  we  attempt,  therefore, 
to  lay  down  general  principles  which  shall  be  absolutely  in- 
clusive and  exclusive,  —  including  all  laws  which  are  obnoxious 
to  the  constitutional  provision,  and  excluding  all  others,  —  we 
shall  find  ourselves  at  once  involved  in  great  difficulty,  a  diffi- 
culty inherent  in  the  nature  of  the  subject,  and  enhanced  by 
the  conflicting  character  of  decided  cases.  It  is  my  design, 
however,  to  meet  the  question,  and  to  attempt  its  solution.  If 
I  do  not  completely  succeed,  I  shall  at  least  be  able  to  point 
out  those  cases  which  have  been  settled,  and  to  indicate  those 
respecting  which  there  is  still  a  doubt. 

§  599.  There  are  some  fundamental  principles  which  are 
admitted  by  all,  and  it  is  well  to  fix  these  in  the  memory  at 
the  outset. 

First.  The  Constitution  forbids  the  states  to  impair  the 
obligation  of  contracts.  This  word  "  impair "  is  important. 
It  is  not  "  destroy."  Destroying  the  obligation  of  a  contract, 
would,  of  course,  impair  it ;  but  impairing  is  not  necessarily 
destruction  ;  it  is  a  word  of  far  less  forcible  meaning.  The 
obligation  may  be  impaired,  and  some  obligation,  some  binding 
efficacy  be  left.  In  fact,  lessening,  taking  away  from,  or  add- 
ing to  the  obligation,  —  that  is,  to  the  sum  of  legal  rights  and 
duties  flowing  from  a  contract,  — would  be  to  impair  it. 

Secondly.  Any  law  thus  operating  upon  a  past  contract, — 
that  is,  upon  a  contract  entered  into  before  the  passage  of  the 


390  IMPAIRING   THE   OBLIGATION. 

law,  —  is  obnoxious  to  the  Constitution,  except  in  the  eases 
referred  to  in  the  next  sentence. 

Thirdly.  If  before  the  execution  of  the  contract,  a  general 
law  had  been  passed,  giving  the  legislature  the  right  to  modify 
such  contract  ;  or  if,  in  the  case  of  grants  and  charters  by  a 
state,  a  reservation  had  been  made  in  the  grant  or  charter 
itself,  or  in  prior  statutes  applicable  thereto,  giving  the  legis- 
lature power  to  repeal  or  modify,  a  subsequent  repeal  or  mod- 
ification would  not  impair  the  obligation  of  the  contract ;  for 
the  power  thus  antecedently  leserved  would  enter  into  and 
form  a  part  of  the  very  obligation  itself. 

We  are  now  prepared  to  pass  to  the  positive  side  of  the 
question  ;  and  it  is  evident  that  all  laws  which  can  impair  the 
obligation  of  a  contract,  must  apply  either  directly  to  the  terms 
of  the  agreement,  or  to  the  remedy  by  which  it  may  be  en- 
forced.    These  cases  will  be  considered  separately. 

1.  Laws  which  apply  directly  to  the  terms  of  Contracts. 

§  600.  In  respect  to  such  laws  there  is  little  difficulty.  The 
point  of  contention  has  been,  to  determine  whether  certain 
transactions  entered  into  between  private  persons,  or  between 
a  state  and  private  persons,  were  contracts.  This  being 
settled,  the  conclusion  is  irresistible  that  statutes  modifying 
their  terms,  fall  within  the  constitutional  inhibition.  It  is  evi- 
dent that  certain  classes  of  legislative  enactments  would  im- 
pair the  obligation  of  contracts.  In  respect  to  private  contracts 
between  individuals,  it  is  so  plain  as  to  require  the  citation  of 
no  authority  to  support  the  proposition,  that  all  state  laws 
operating  upon  past  agreements,  and  affecting  the  very  terms 
thereof;  which  wholly  or  partially  discharge  one  contracting 
party,  without  the  consent  of  the  other,  from  doing  the  very 
thing  which  he  agreed  to  do ;  or  which  add  new  stipulations 
or  conditions  to  the  engagement;  or  which  take  away  any 
that  were  incorporated  into  it ;  or  which  extend  or  shorten  the 
agreed  time  for  performance  ;  or  which  render  contracts  illegal 
and  void  which  were  before  legal  and  valid  ;  or  which  make 
those  legal  and  binding  which  were  before  illegal  and  null ;  — 


OBLIGATION   OF   CONTRACTS.  391 

%\l  such  legislative  acts  would  impair  the  obligation  of  existing 
contracts  affected  thereby.  In  short,  these  statutes  would 
strike  at  the  very  substance  of  the  agreement,  increasing  or 
diminishing  the  aggregate  of  substantial  rights  and  duties 
which,  as  we  have  seen,  go  to  make  up  the  obligation.  On 
the  contrary,  such  statutes,  as  far  as  they  should  apply  to  con- 
tracts executed  subsequently  to  their  passage,  wculd  not  im- 
pair their  obligation. 

§  601.  In  respect  to  contracts  between  a  state  and  private 
persons,  including  grants  and  charters,  it  is  equally  plain  that, 
where  no  power  for  such  purpose  is  antecedently  reserved,  all 
statutes  directly  repealing  the  grant  or  charter,  or  in  any  way 
modifying  its  express  terms,  by  changing  the  organization  of 
a  corporation,  or  by  taking  away  powers,  or  by  adding  new 
conditions  or  duties,  impair  the  obligation  of  this  species  of 
contracts.  The  cases  cited  in  the  former  part  of  this  section 
sufficiently  illustrate  the  application  of  the  rule.  But  it  should 
be  carefully  noticed  that  no  implied  contracts  arise  in  favor  of 
a  corporation,  from  the  mere  objects  or  designs  of  the  charter  ; 
so  that  the  modification  must  be  either  of  something  absolutely 
expressed,  or  of  something  necessarily  included  in  what  is  ab- 
solutely expressed.  Thus  we  have  seen  that  imposing  a  tax 
on  a  bank  is  not  prohibited,  when  the  charter  is  silent  on  the 
subject  of  taxation,  because  no  restriction  upon  the  taxing 
power  can  be  implied  from  the  mere  fact  of  incorporation. 
But  on  the  other  hand,  if  a  bank  should  be  incorporated  by  a 
charter  silent  in  respect  to  the  individual  liability  of  the  stock- 
holders, no  power  being  reserved  to  modify  the  charter,  a 
subsequent  act  of  the  state  legislature  imposing  an  individual 
liability,  would  fall  within  the  constitutional  inhibition.  For 
by  the  general  common  law,  corporators  are  not  individually 
liable  ;  and  the  charter  having  been  granted  at  a  time  when 
this  rule  of  law  existed,  the  rule  itself  would  necessarily  enter 
into  and  form  a  part  of  the  obligation.  But  if  the  power  to 
modify  had  been  reserved  to  the  state  legislature,  the  subse- 
quent statute  of  this  character  would  not  impair  the  obligation 
of  a  contract,  as  was  directly  held  in  the  matter  of  Oliver  Lea 


892  IMPAIRING   THE   OBLIGATION. 

and  Co.'s  Bank.1  The  Supreme  Court  of  the  United  States 
lately  decided  in  Hawthorne  v.  Calef,  2  that,  when  the  charter 
of  a  railway  company  contained  a  clause  making  the  property 
of  the  stockholders  liable,  to  the  amount  of  the  stock  held  by 
them  respectively,  for  the  debts  of  the  corporation,  a  subse- 
quent repeal  of  this  provision  was  void  as  against  existing  cred- 
itors, because  it  destroyed  a  contract  made  with  them  by  the 
charter. 

§  602.  It  is  settled,  however,  by  a  solemn  judgment  of  the 
Supreme  Court  of  the  United  States.,  that  the  states  may  exer- 
cise the  right  of  eminent  domain  over  corporations  in  the  same 
manner  and  to  the  same  extent  as  over  individuals,  that  is, 
may  take  the  corporate  property  and  franchises  for  public  use, 
upon  paying  just  compensation  therefor  ;  such  a  proceeding  on 
the  part  of  a  state  will  not  impair  the  obligation  of  any  contract 
contained  in  the  charter.  This  proposition,  which,  as  we  have 
seen,  has  been  maintained  by  several  state  tribunals,  was  finally 
established  by  the  Supreme  Court  in  West  River  Bridge  Co. 
v.  Dix.3 

To  this  general  description  of  statutes  which  apply  to  the 
very  terms  of  contracts  and  thereby  impair  their  obligation,  I 
shall  add  a  brief  reference  to  the  most  important  class  of  these 
laws,  and  to  their  effects  upon  the  rights  and  duties  of  cred- 
tors  and  debtors. 

§  603.  State  Insolvent  Laws.  —  The  insolvent  laws  referred 
to  are  those  which  provide,  under  certain  conditions  and 
restrictions,  for  the  absolute  discharge  of  a  debtor  from  his 
debts.  Most  states  of  the  Union  have  statutes  of  this  charac- 
ter as  a  part  of  their  general  scheme  of  legislation.  We  may 
examine  the  effect  of  such  laws  upon  debts  created  before  their 
passage.  There  can  be  no  difficulty  upon  this  point.  The 
obligation  of  the  contract  would  be  not  only  impaired,  but  ab- 
solutely destroyed,  the  debtor  being  entirely  released  from 
doing  what  he  agreed  to  do.  This  principle  was  established 
in  the  great  case  of  Sturges  v.  Crowningshield,4  the  Supreme 
Court  having  been  unanimous  in  the  result  which  was  reached. 

1  7  Smith's  R.  9.  2  2  Wallace's  R.  10. 

3  6  Howard's  R.  507.  4  4  Wheaton's  R.  122. 


OBLIGATION  OF  CONTRACTS.  393 

With  this  result  all  courts,  state  and  national,  have  heartily 
agreed.  I  add,  in  the  foot-note,  a  few  cases  in  which  the  rule 
has  been  distinctly  reaffirmed.1 

§  604.  We  may  also  examine  the  effect  of  insolvent  laws 
upon  contracts  entered  into  subsequent  to  their  passage.  This 
question  was  presented  in  the  great  case  of  Ogden  v.  Saun- 
ders.2 Perhaps  no  case  was  ever  argued  before  the  Supreme 
Court  with  more  care,  and  decided  with  more  consideration. 
I  have  already  spoken  of  this  judgment  somewhat  at  large, 
and  need  not  repeat  the  arguments  and  separate  conclusions 
of  the  judges.  It  was  held  by  a  majority  of  the  court  that  a 
state  insolvent  law,  providing  for  a  discharge  of  a  debtor  from 
his  debts,  does  not  impair  the  obligation  of  contracts  enterec 
into  subsequent  to  its  passage,  and  while  it  continues  in  force. 
I  am  not  able  to  see  any  doubt  as  to  the  correctness  of  this 
decision  upon  principle,  and  it  seems  remarkable  that  two  such 
able  jurists  as  Marshall  and  Story  should  have  dissented.  At 
all  events  the  rule  was  thus  settled,  and  has  since  been  uni- 
versally followed.3 

§  605.  Although  not  necessarily  connected  with  the  subject- 
matter  of  this  work,  it  is  proper  to  state  the  practical  rules 
which  have  been  established  in  reference  to  the  effect  of  an 
insolvent  discharge.  Such  discharge  operates  upon  two  per- 
sons or  classes  of  persons,  the  debtor  and  his  creditors ;  upon 
the  debtor  favorably,  by  relieving  him  from  his  liabilities  ; 
upon  the  creditors  unfavorably,  by  destroying  their  claims. 
Now  the  question  arises,  Does  the  discharge  of  a  debtor  by  the 
laws  of  a  state  in  which  he  is  domiciled,  operate  upon  the 
claims  of  all  American  creditors,  no  matter  in  what  state  they 
may  reside  ?  This  question  is  partly  constitutional,  and  is 
partly  referable  to  that  department  of  jurisprudence  which 
modern  writers  term  the  private  international  law.     The  fun- 

1  Farmers'  and  Mechanics'  Bank  v.  Smith,  6  Wheat.  R.  131.  Smith  ••• 
Mead,  3  Conn.  R.  253.  Boardman  v.  DeForrest,  5  Conn.  R.  1.  Roosevelt 
v.  Cebra,  17  Johns.  R.  108.     Kimberh-  v.  Ely,  <?  Pick.  R.  451. 

2  12  Wheaton's  R,  213. 

3  Blanchard  v.  Russell,  13  Mass.  R.  1.  Hemstead  v.  Reed,  6  Conn.  R. 
t80.     Betts  v.  Bagley,  12  Pick.  R.  572. 


894  INSOLVENT   DISCHARGES. 

damental  principle  established  by  the  Supreme  Court  is,  that 
the  state  domicil  or  inhabitancy  of  the  creditor  is  the  fact 
which  determines  the  validity  of  a  state  insolvent  discharge  as 
against  him  ;  or,  in  other  words,  that  these  discharges  have 
no  extra-territorial  effect  as  against  the  creditor.  There  may 
be  three  cases. 

§  606.  First.  The  creditor  and  the  debtor  may  be  inhabi- 
tants of  the  same  state.  Here,  of  course,  the  insolvent  dis- 
charge granted  in  that  state,  destroys  the  creditor's  claim. 
Being  a  member  of  the  state,  he  is  bound  by  its  laws,  and  the 
obligation  of  the  contract  he  entered  into  was  created  by  those 
laws.  This  rule  is  so  well  settled,  that  I  simply  refer,  in  its 
support,  to  a  few  cases  collected  in  the  foot-note.1 

§  607.  Secondly.  The  creditor  may  be  an  inhabitant  of  a 
different  state  from  the  one  in  which  the  debtor  obtains  his 
discharge,  and  the  contract  may  not,  by  its  express  terms, 
have  been  made  payable  in  the  latter  commonwealth.  The 
creditor  is  not  bound,  against  his  consent,  by  such  a  discharge. 
His  claim  still  subsists,  and  may  be  enforced,  notwithstanding 
the  insolvency.  These  were  the  facts  in  Ogden  v.  Saunders. 
Ogden,  then  an  inhabitant  of  New  York,  had  accepted  cer- 
tain bills  of  exchange  held  by  Saunders,  a  resident  of  Kentucky. 
Ogden  was  subsequently  discharged  in  New  York  under  the 
insolvent  law  of  that  state.  Having  afterwards  removed  to 
Louisiana,  he  was  there  sued  upon  these  bills,  and  set  up  his 
discharge  as  a  defence  to  the  action.  This  defence  the  Su- 
preme Court  finally  overruled.2  The  same  court  reaffirmed 
the  rule  in  Boyle  v.  Zacharie,3  and  Cook  v.  Moffatt.4  State 
courts  have  acquiesced  in  this  doctrine.5 

§  608.  Thirdly.  The  courts  of  Massachusetts  and  of  one  or 
two  other  states,  however,  have  endeavored  to  engraft  an  ex- 
ception upon  the  last  mentioned  rule,  as  follows  :  If  the  con- 

1  Ogden  v.  Saunders,  1 2  Wheat.  R.  358.  Norton  v.  Cook,  9  Conn.  R 
!>14.  Walsh  v.  Farrand,  13  Mass.  R.  19.  Pugh  v.  Bussell,  2  Blackf.  R 
366  a  12  Wheaton's  R.  358,  369 

3  6  Peters'  R.  348,  635.  *  5  Howard's  R.  295. 

5  Norton  v.  Cook,  9  Conn.  R.  314.  Bradford  v.  Farrand,  13  Mass.  R 
8.     Pugh  v.  Bussell,  2  Blackf.  R.  366. 


OBLIGATION  OF   CONTRACTS.  396 

tract,  by  i*s  express  terms,  was  to  be  performed  in  the  state 
where  the  lebtor  resided,  and  where  he  obtained  his  discharge, 
the  creditor,  though  an  inhabitant  of  another  state,  is  bound  by 
that  discharge.  This  statement  of  the  rule  would  make  the 
efficacy  of  the  discharge  to  depend  upon  the  locus  of  the  con- 
tract, and  not  upon  the  domicil  of  the  creditor.  The  Supreme 
Court  of  Massachusetts  insisted  upon  this  view  in  the  old  case  of 
Blanchard  v.  Russell1  (1816),  and  later,  in  that  of  Scribner  v. 
Fisher  2  (1854).  But  the  Court  of  Appeals  of  New  York  had 
considered  the  exact  question,  and  had  arrived  at  an  opposite 
conclusion  in  Donelly  v.  Corbett3  (1852).  Finally,  the  case 
of  Baldwin  v.  Hale  4  (1863),  was  carried  to  the  Supreme 
Court  of  the  United  States,  and  the  exception  which  the  Mas- 
sachusetts tribunals  had  endeavored  to  establish,  was  over- 
ruled ;  the  place  of  performance  was  held  immaterial  ;  the 
domicil  of  the  creditor,  under  all  circumstances,  was  declared 
to  be  the  determining  fact.  After  this  decision,  the  Massachu- 
setts court  gracefully  receded  from  its  position,  and  in  Kelly  v. 
Drury  5  (1864),  adopted  the  views  of  the  national  judiciary. 
The  Supreme  Court  again  affirmed  their  rule  in  Gilman  v. 
Lockwood  (1867). 

2.  Laws  which  Apply  Directly  to  the  Remedy. 

§  609.  What  laws,  if  any,  which  apply  directly  to  the 
remedy,  fall  within  the  inhibition  of  the  Constitution,  has 
given  rise  to  much  judicial  controversy  and  conflict  of  decision. 
State  courts  of  undoubted  ability  have  asserted  and  maintained 
the  proposition,  that  the  remedy  is  completely  under  the  con- 
trol of  the  local  law.  Others  of  no  less  authority  have  ad- 
mitted that  the  remedy  may  be  interfered  with  to  such  an 
extent  as  to  impair  the  obligation  of  contracts,  but  have  virtu- 
ally refused  to  apply  this  doctrine  to  cases  where  any  remedy 
has  been  left,  although  its  efficacy  may  have  been  materially 
diminished,  or  a  resort  to  it  may  have  been  arbitrarily  post- 
ooned.     On  the  other  hand,  the  Supreme  Court  of  the  United 

1  13  Mass.  R.  1.  22  Gray's  R.  43.  3  3  SeMen's  R.  500 

*  1  Wallace's  R.  223.        5  9  Allen's  R.  27. 


896  LAWS   AFFECTING   THE   REMEDY. 

States  lias,  in  a  series  of  important  cases,  established  and  ap- 
plied the  rule,  that  materially  abridging  or  postponing  the 
existing  remedy,  or  imposing  new  conditions  upon  it  wirier 
substantially  interfere  with  its  pursuit,  have  the  effect  to 
impair  the  obligation  of  contracts.  But  it  must  he  admitted 
that  the  state  courts  have  shown  themselves  very  unwilling  to 
accept  these  conclusions  of  the  national  tribunal,  and  the  rea- 
soning upon  which  they  were  founded,  and  to  apply  them  in 
their  integrity  to  subsequent  cases  as  they  have  arisen.  I 
believe,  however,  that  the  obscurity  which  has  been  thrown 
around  this  subject,  and  the  direct  contradiction  of  judicial 
decision  which  has  been  so  frequent,  have  resulted  in  great 
measure  from  the  employment  of  the  word  "  remedy  "  in  un- 
certain and  even  in  double  senses  ;  that  in  this,  as  in  so  many 
other  forensic  disputes,  the  parties  have  not  given  to  the  same 
terms  the  same  meaning  ;  and  that  by  a  proper  analysis  it  is 
possible  to  arrive  at  a  general  principle  which  may  reconcile  all 
conflict,  and  be  a  guide  in  the  decision  of  all  cases. 

§  610.  It.  was  shown  in  a  former  paragraph  that  a  remedial 
right  is  included  in  the  very  notion  of  the  obligation  of  a  con- 
tract ;  that  without  such  a  right  there  would  be  nothing  imper- 
ative in  the  rule  of  law  requiring  parties  to  do  what  they  have 
agreed  to  do.  Any  state  statute  which  impairs  this  remedial 
right  in  the  case  of  an  existing  contract,  as  truly  and  as  effect- 
ually impairs  the  obligation  as  though  its  operation  had  been 
directed  against  the  very  terms  in  which  the  parties  had  ex- 
pressed their  compact.  This  would  seem  to  be  self-evident. 
But  lawyers,  judges,  and  text-writers  have  not  always  dis- 
tinguished between  this  intrinsic  remedial,  or  sanctioning 
right,  which  is  additional  to  the  primary  right  flowing  from 
the  very  terms  of  the  contract,  and  which  equally  with  it 
forms  a  part  of  the  obligation,  and  the  mere  modes,  the  mere 
judicial  procedure  by  means  of  which  this  secondary  right  is 
enforced.  The  word  "remedy"  has  been  applied  to  both, 
to  the  essential  remedial  right  which  is  the  final  object  of  all 
judicial  procedure,  and  to  the  procedure  itself;  a  denial  that 
the  latter  forms  any  part  of  the  obligation  has  been  tacitly  or 
expressly  extended  to  the  former  ;   and  the  whole  remedy  has 


OBLIGATION   OF   CONTRACTS.  397 

thus  been  placed  under  the  control  rf  state  legislatures.  Thai 
this  result  is  plainly  erroneous  may  be  established,  I  think,  by 
the  following  analysis  : 

§  611.  The  term  remedy  used  in  our  legal  nomenclature 
includes,  as  Austin  clearly  shows,  two  entirely  distinct  classes 
of  objects  ;  (1)  the  secondary,  sanctioning,  or  remedial  right 
by  which  the  observance  of  a  contract  is  made  something  more 
than  voluntary  ;  (2)  the  procedure  by  and  through  which  this 
secondary,  sanctioning  right  is  made  efficient.  The  first  of 
these  objects  is  included  within  the  obligation  ;  the  second  is 
not.  To  express  the  same  proposition  in  other  language,  a 
party  may  demand  that  substantially  the  same  remedial  right 
appropriate  to  his  contract  when  it  was  entered  into,  shall  be 
accorded  to  him  when  it  is  broken  ;  he  cannot  demand  that 
the  forms  of  judicial  procedure  which  prevailed  at  the  former 
time  shall  also  be  in  existence  at  the  latter.  If  we  can  ascer- 
tain, therefore,  in  any  general  way,  what  is  necessarily  em- 
braced within  the  secondary,  sanctioning,  or  remedial  right 
which  inheres  in  the  injured  party  upon  the  breach  of  a  con- 
tract, we  shall  also  have  ascertained  what  laws,  by  impairing 
that  remedial  right,  will  impair  the  obligation  of  the  contract 
itself. 

§  612.  Under  our  system  of  jurisprudence  two  forms  of  re- 
medial right  may  result  to  the  injured  party  upon  the  breach 
of  a  contract ;  the  one  form  applying  to  a  small  number  only 
of  agreements,  the  other  being  appropriate  to  all.  The  first  is 
the  right  to  have  done  exactly  what  the  defaulting  party  prom- 
ised to  do,  —  the  remedial  right  to  a  specific  performance.  The 
other  is  compensatory,  or  the  right  to  be  paid  such  an  amount 
of  pecuniary  damages  as  shall  be  a  compensation  for  the  injury 
caused  by  the  failure  of  the  defaulting  party  to  do  exactly  what 
he  promised  to  do.  Both  of  these  species  of  remedial  rights 
must  be  pursued  by  the  aid  of  the  courts.  In  both,  the  exist 
ence  of  the  contract  and  of  the  breach  must  be  established. 
These  facts  having  been  sufficiently  ascertained,  a  decree  oi 
judicial  order  must  be  rendered,  in  the  first  case,  that  the  de 
faulting  party  do  exactly  what  he  undertook  to  do,  and  in  the 
second  case,  that  the  defaulting  party  pay  tne  sum  of  money 


S98  LAWS  AFFECTING  THE  REMEDY. 

fixed  as  a  compensation  for  his  delict.  But  the  remedial  right 
cannot  stop  here,  else  it  would  be  a  mere  empty  show.  The 
judicial  order  addressed  to  the  defaulting  party  must  be  en- 
forced ;  in  the  first  case,  by  compelling  him  to  do  the  act  or 
acts  commanded  to  be  done  ;  in  the  second  rase,  by  seizing 
and  selling  so  much  of  his  property  as  may  be  necessary  to  pay 
the  sum  adjudged  against  him,  if  he  neglects  to  make  volun- 
tary payment.  Included  within  the  general  sanctioning,  or 
remedial  right  which  forms  part  of  the  obligation  of  every  con- 
tract, are  therefore  the  following  elements,  each  and  all  neces- 
sary to  its  efficacy  and  perfection  :  (1)  the  right  to  bring  an 
action  against  the  defaulting  party  as  soon  after  the  breach  as 
is  permitted  by  the  ordinary  procedure  of  the  courts ;  (2)  the 
right  to  obtain  a  judgment  or  decree  as  soon  as  possible  accord- 
ing to  the  ordinary  modes  of  proceeding  in  the  court  where 
the  action  is  pending  ;  (3)  the  right  to  enforce  this  judgment 
as  soon  and  as  efficiently  as  is  allowed  by  the  same  general 
methods  of  practice.  State  laws  interfering  with  either  of 
these  elements,  interfere  with  the  remedial  right  itself,  impair 
its  efficacy,  and  thereby  impair  the  obligation  of  the  contract. 

§  613.  But  the  modes  of  judicial  procedure  have  nothing  in 
them  intrinsically  connected  with  the  remedial  right.  They 
are  adopted  from  motives  of  public  policy,  and  from  a  desire 
to  promote  the  convenience,  partly  of  the  whole  body  of  citi- 
zens, partly  of  the  bench  and  the  bar,  and  partly  of  suitors. 
They  are  therefore  changed,  and  may  be  changed  whenever 
new  notions  of  policy  become  controlling,  or  an  altered  con- 
dition of  society  or  business  requires  another  arrangement. 
Among  those  matters  which  belong  to  procedure  are  the  num- 
ber, organization,  and  jurisdiction  of  courts  ;  the  times  and 
places  of  holding  courts  ;  the  forms  of  action  and  of  pleading 
by  which  the  claims  and  defences  of  parties  shall  be  presented  , 
the  periods  of  time  given  in  which  to  respond  to  claims  and 
defences,  and  to  prepare  for  trial,  provided  the  length  of  such 
periods  be  fairly  referable  to  the  convenience  of  courts  and 
suitors,  and  they  are  not  mere  arbitrary  delays  which  unneces- 
sarily hinder  the  creditor  in  the  pursuit  of  his  remedial  right 
the  forms  of  trial ;  the  nature  of  the  evidence  ;  the  modes  of 


OBLIGATION  OF   CONTRACTS.  39S 

review  ;  the  time  within  which  judgment  may  be  enforced, 
provided  such  period  be  fairly  referable  to  that  general  con- 
venience of  courts  and  suitors  which  lies  at  the  basis  of  all 
established  modes  of  practice,  and  be  not  a  mere  arbitrary 
delay  which  unnecessarily  hinders  the  creditor.  A  change  in 
these  and  such-like  matters  does  not  affect  the  remedial  light 
itself,  and  does  not  impair  the  obligation  of  even  existing 
contracts. 

§  614.  To  illustrate  :  If  the  courts  of  a  state  are  regularly 
open  at  certain  intervals  of  time,  so  that  a  resort  to  them  is 
possible,  a  statute  made  applicable  to  existing  agreements,  and 
fbrbiddino-  suits  to  be  brouo-ht  thereon  for  one,  two,  or  three 
years  after  the  breach,  or  permitting  suits  to  be  commenced, 
but  forbidding  any  further  prosecution  thereof  to  judgment  for 
one,  two,  or  three  years,  would  directly  operate  upon  the 
essence  of  the  remedial  right,  and  not  upon  the  forms  and 
modes  of  procedure  by  which  that  right  is  enforced.  Such  a 
law  would  be  exactly  equivalent  to  a  legislative  act  that  should 
add  one,  two,  or  three  years  to  the  original  time  of  perform- 
ance which  the  parties  had  agreed  upon.  It  would  be  entirely 
independent  of  the  judicial  methods  over  which  the  state  has 
control,  because  those  methods  must  still  be  followed  when  the 
action  is  allowed  to  proceed.  In  like  manner  if,  at  the  time  a 
contract  was  entered  into,  a  judgment  recovered  thereon  could 
be  enforced  as  soon  as  obtained,  a  subsequent  state  law  that 
should  peremptorily  delay  the  compulsive  enforcement  for  one, 
two,  or  three  years,  would  be  equally  obnoxious  to  the  consti- 
tutional prohibition.  In  conclusion  :  The  remedy  embraces 
an  essential  sanctioning  or  remedial  right,  and  the  judicial  pro- 
cedure by  which  that  right  is  enforced.  The  procedure  forms 
no  part  of  the  obligation,  and  may  be  changed.  The  essential 
remedial  right  does  form  a  part  of  the  obligation,  and  may  not 
be  impaired. 

§  615.  These  conclusions  seem  to  be  entirely  warranted  and 
sustained  by  a  series  of  cases  in  the  Supreme  Court  of  the 
United  States,  and,  though  expressed  in  somewhat  different 
language  from  that  employed  by  the  national  judiciary,  to  fcrm 


400  LAWS   AFFECTING   THE    REMEDY. 

the  very  ratio  decidendi  of  those  cases.  In  Bronson  v.  Kinzie1 
(1843),  Chief  Justice  Taney,  while  delivering  the  opinion  of 
the  court,  stated  the  general  rule  in  the  following  manner  : 
"  If  the  laws  of  the  state  passed  afterwards  had  done  nothing 
more  than  change  the  remedy  upon  contracts  of  tins  descrip- 
tion, they  would  he  liable  to  no  constitutional  objection.  For 
undoubtedly  a  state  may  regulate  at  pleasure  the  modes  of  pro- 
ceeding in  its  courts  in  relation  to  past  contracts  as  well  as 
future.  It  may,  for  example,  shorten  the  period  of  time  within 
which  claims  shall  be  barred  by  the  statute  of  limitations.  It 
may,  if  it  thinks  proper,  direct  that  the  necessary  implements 
of  agriculture,  or  the  tools  of  the  mechanic,  or  articles  of  neces- 
sity in  household  furniture,  shall,  like  wearing  apparel,  not 
be  liable  to  execution  on  judgments.  .  .  .  And  although 
the  new  remedy  may  be  less  convenient  than  the  old  one,  and 
may  in  some  degree  render  the  recovery  of  debts  more  tardy 
and  difficult,  yet  it  will  not  follow  that  the  law  is  unconstitu- 
tional. Whatever  belongs  merely  to  the  remedy  may  be  altered 
according  to  the  will  of  the  state,  provided  the  alteration  does 
not  impair  the  obligation  of  the  contract.  But  if  that  effect  is 
produced,  it  is  immaterial  whether  it  is  done  by  acting  on  the 
remedy,  or  directly  on  the  contract  itself.  In  either  case  it  is 
prohibited  by  the  Constitution.  ...  It  is  difficult  perhaps 
to  draw  a  line  that  would  be  applicable  in  all  cases,  between 
legitimate  alterations  of  the  remedy,  and  provisions  which,  in 
the  form  of  remedy,  impair  the  right.  But  it  is  manifest  that 
the  obligation  of  a  contract,  and  the  rights  of  a  party  under  it, 
may  in  effect  be  destroyed  by  denying  a  remedy  altogether ; 
or  may  be  seriously  impaired  by  burdening  the  proceedings 
with  new  conditions  and  restrictions,  so  as  to  make  the  remedy 
hardly  worth  pursuing."  He  then  proceeds  to  show  that  a 
remedial  right,  or  a  sanction  by  which  to  enforce  the  command 
of  the  law,  is  a  necessary  part  of  the  obligation  of  a  contract. 
Quoting  a  passage  from  Blackstone  to  this  effect,  he  adds : 
''  We  have  quoted  the  entire  paragraph  because  it  shows  in  a 
few  plain  words  the  connection  of  the  remedy  with  the  right. 
[t  is  the  part  of  the  municipal  law  which  protects  the  right 
i  1  Howard's  R.  311. 


OBLIGATION   OF   CONTRACTS.  401 

and  the  obligation  by  which  it  enforces  and  maintains  it.  It 
is  this  protection  which  the  clause  in  the  Constitution  mainly 
intended  to  secure.  And  it  would  be  unjust  to  the  memory 
of  the  distinguished  men  who  framed  it,  to  suppose  that  it  was 
designed  to  protect  a  mere  barren  and  abstract  right,  without 
any  practical  operation  upon  the  business  of  life.  It  was  un- 
doubtedly adopted  as  a  part  of  the  Constitution  for  a  great  and 
useful  purpose.  It  was  to  maintain  the  integrity  of  contracts, 
and  to  secure  their  faithful  execution  throughout  the  Union, 
by  placing  them  under  the  protection  of  the  Constitution  of 
the  United  States.  And  it  would  ill  become  this  court,  under 
any  circumstances,  to  depart  from  the  plain  meaning  of  words 
used,  and  to  sanction  a  distinction  between  the  right  and  the 
remedy  which  would  render  the  provision  illusive  and  nuga- 
tory." 

It  would  seem  to  be  plain  that  Chief  Justice  Taney  had  in 
mind  the  distinction  which  I  have  stated  from  Austin,  between 
the  essential  remedial  right,  and  the  modes  of  procedure.  Yet 
it  is  remarkable  that  many  state  judges  have  shut  their  eyes 
to  his  whole  course  of  reasoning,  and  to  the  conclusions 
reached  by  that  reasoning,  and  not  a  few  have  given  far  more 
weight  to  the  dictum  incidentally  thrown  into  his  remarks  con- 
cerning the  power  of  a  state  legislature  to  exempt  property 
from  execution,  than  to  the  principle  of  constitutional  con- 
struction upon  which  the  judgment  of  the  court  proceeded. 

§  616.  In  McCracken  v.  Hayward  *  (1844),  Baldwin,  J., 
while  pronouncing  the  judgment  of  the  court,  used  language 
as  the  foundation  of  that  decision,  even  yet  more  emphatic  : 
"  In  placing  the  obligation  of  a  contract  under  the  protection 
of  the  Constitution,  its  framers  looked  to  the  essentials  of  a 
contract  more  than  the  forms  and  modes  of  proceeding  by 
which  it  was  to  be  carried  into  execution  ;  annulling  all  state 
legislation  which  impaired  the  obligation,  it  was  left  to  the 
states  to  prescribe  and  shape  the  remedy  to  enforce  it.  The 
obligation  of  a  contract  consists  in  its  binding  force  on  the 
party  who  makes  it.  This  depends  on  the  laws  in  existence 
when  it  is  made ;  these  are  necessarily  referred  to  in  all  con- 
i  2  Howard's  R.  608,  612. 


402  LAWS   AFFECTING   THE   REMEDY. 

,tiacts,  and  form  a  part  of  them,  as  the  measure  of  the  obliga- 
tion to  perforin  them  by  the  one  party,  and  the  right  acquired 
by  the  other.  There  can  be  no  other  standard  by  which  to 
ascertain  the  extent  of  either,  than  that  which  the  terms  of  the 
contract  indicate  according  to  their  settled  legal  meaning  ; 
when  it  becomes  consummated,  the  law  defines  the  duty  and 
the  right,  compels  one  party  to  perforin  the  thing  contracted 
for,  and  gives  the  other  a  right  to  enforce  the  performance  by 
the  remedies  then  in  force.  If  any  subsequent  law  diminish 
the  duty,  or  impair  the  right,  it  necessarily  bears  on  the  obli- 
gation of  the  contract  in  favor  of  one  party  to  the  injury  of  the 
other.  Hence,  any  law  which,  in  its  operation,  amounts  to  a 
denial  or  obstruction  of  the  rights  accruing  by  a  contract, 
though  professing  to  act  only  on  the  remedy,  is  directly  ob- 
noxious to  the  prohibition  of  the  Constitution." 

In  Grantly's  Lessee  v.  Ewing1  (1845),  the  court  said. 
"  This  court  held  in  Bronson  v.  Kinzie  that  a  right  and  a 
remedy  substantially  in  accordance  with  the  right,  were  equally 
parts  of  the  contract,  secured  by  the  laws  of  the  state  where  it 
was  made  ;  and  that  a  change  of  these  laws,  imposing  con- 
ditions and  restrictions  on  the  mortgagee  in  the  enforcement 
of  his  contract,  and  which  affected  its  substance,  impaired  the 
obligation  and  could  not  prevail  ;  as  an  act  directly  prohibited 
could  not  be  done  indirectly." 

In  Cumin  v.  Arkansas  2  (1853),  the  court  said  :  "  The 
obligation  of  a  contract,  in  the  sense  in  which  these  words  are 
used  in  the  Constitution,  is  that  duty  of  performing  it  which  is 
recognized  and  enforced  by  the  laws.  And  if  the  law  is  so 
changed,  that  the  means  of  legally  enforcing  this  duty  are 
materially  impaired,  the  obligation  of  the  contract  no  longer 
remains  the  same." 

These  several  citations  are  not  mere  dicta,  unnecessary  to 
the  decision  of  the  cases  in  which  they  were  uttered,  but  are 
formal  statements  of  the  very  principle  of  constitutional  law 
upon  which  the  judgments  of  the  court  are  based.  I  shah 
Dow  briefly  notice  the  application  of  this  principle  to  some  of 
1  3  Howard's  R.  707,  717.  2  15  Howard's  R.  304. 


OBLIGATION   OF   CONTRACTS.  403 

the  most  common  species  of  state  statutes  which  directly  apply 
to  the  remedy. 

§  617.  (1.)  Deprivation  of  Remedies.  —  If  the  law  of  a 
state  should  assume  to  deprive  the  injured  party  of  all  reme- 
dial right  upon  an  existing  contract,  the  legislative  act  would 
plainly  impair  the  obligation  of  such  contract.  This  doctrine 
is  fully  established.  The  cases  cited  in  the  foot-note  will  show 
how  it  has  been  recognized  by  state  courts.1  But  if  in  addition 
to  the  ordinary  remedial  right  by  action  for  a  specific  perform- 
ance, or  for  the  recovery  of  pecuniary  damages,  the  common 
law  or  statute  had  given  a  special,  cumulative,  and  perhaps 
more  summary  right  of  redress,  the  state  courts  have  held  that 
the  destruction  of  this  special  right  does  not  impair  the  obliga- 
tion of  the  contracts  to  which  it  was  appropriate,  if  the  general 
right  by  action  be  left  in  full  force.2  As  an  application  of  this 
principle,  it  has  been  held  that  a  law  abolishing  distress  for 
rent,  and  made  applicable  to  existing  leases,  is  valid.3  I  think 
it  is  by  no  means  clear  that  these  decisions  do  not  trench  upon 
the  rule  established  by  the  Supreme  Court  of  the  United 
States.  We  will  now  pass  to  those  classes  of  statutes  which 
purport  not  to  destroy,  but  simply  to  modify,  an  existing  reme- 
dial right. 

§  618.  (2.)  Statutes  of  Limitation.  —  A  statute  of  limita- 
tion, shortening  the  time  within  which  actions  may  be 
brought,  and  made  applicable  to  existing  contracts,  may  fall 
within  the  prohibition  of  the  Constitution,  or  may  be  entirely 
unobjectionable.  If  its  effect  be  to  prevent  an  action,  where 
the  right  of  action  exists,  it  would  not  only  impair  but  abso- 
lutely destroy  the  obligation,  and  would  be  void.  But  if  it 
left  a  reasonable  time  within  which  the  injured  party  might 
bring  his  action,  although  that  time  might  be  shorter  than  had 

1  Call  v.  Hagger,  8  Mass.  R.  423,  429  ;  Mundy  v.  Monroe,  1  Manning's 
R.  68  ;  Kennebec  Land  Co.  v.  Laboree,  2  Greenl.  R.  275,  293  ;  Society  for 
the  Propagation  of  the  Gospel  v.  Wheeler,  2  Gallis.  R.  105,  141,  per 
Story,  J. 

*  Stocking  v.   Hunt,  3  Denio's  R.  274;  Wood  v.  Child,  20  111.  R.  209 
Evans  v.  Montgomery,  4  W.  &  S.  218. 

3  Van  Rensselaer  v.  Snyder,  3  Kernan's  R.  299 ;  Conkey  v.  Hart,  4 
Kernan's  R.  22. 


104  LAWS   AFFECTING  THE   REMEDF. 

before  existed,  the  remedial  right  would  be  perfect,  the  oblica. 
tion  would  be  unimpaired.  Statutes  of  limitation  are  measures 
of  public  policy  ;  and  if  the  person  clothed  with  a  remedial 
right  be  left  free  to  pursue  it  immediately  after  its  inception, 
he  is  not  damnified  and  cannot  complain,  if  he  be  required  to 
pursue  it  with  diligence.  Thus,  the  ordinary  period  within 
which  actions  may  be  brought  upon  simple  contracts  is  six- 
years  ;  a  state  might  reduce  this  period  to  three  years;  this 
legislative  act  would  be  void  as  to  all  existing  contracts  where 
the  right  of  action  had  accrued  more  than  three  yeai*s,  and  less 
than  six  years  before,  for  in  such  cases  no  action  could  there- 
after be  brought,  and  the  remedial  right  would  be  gone  ;  but 
the  new  law  would  be  valid  as  to  all  existing  contracts  where 
the  right  of  action  had  not  yet  accrued,  or  where  it  had  ac- 
crued a  year  or  two  years  before,  for  even  in  the  latter  cases 
there  would  be  ample  opportunity  left  within  which  to  enforce 
the  remedial  right.  These  doctrines  have  been  acknowledged 
by  the  national  and  state  judiciary,  and  form  part  of  the  settled 
constitutional  law  of  the  land.1  A  few  state  courts,  however, 
have  shown  a  disposition  to  give  a  greater  force  and  efficacy 
to  statutes  of  limitation.2 

§  619.  (3.)  Imprisonment  for  Debt.  —  Upon  the  same  prin- 
ciple, a  statute  abolishing  imprisonment  for  debt  might  be 
made  applicable  to  existing  contracts,  and  would  not  impair 
their  obligation.  Arrest  and  imprisonment  of  the  debtor,  like 
a  preliminary  attachment  of  his  goods,  is  clearly  a  part  of  the 
mere  procedure  ;  it  does  not  enter  into  our  notion  of  the  essen- 
tial remedial  right ;  it  does  not  perform  the  stipulations  of  a 
contract,  or  pay  pecuniary  damages  for  their  non-performance. 
The  assent  to  this  particular  rule  seems  to  have  been  uni- 
versal.3 

i  Call  v.  Hagger,  8  Mass.  R.  423,  429  ;  Kennebec  Co.  v.  Laboree,  2 
Greenl.  R.  275,  293;  S.  P.  G.  v.  Wheeler,  2  Gallis.  R.  105,  141,  per 
Story,  J. ;  Sturges  v.  Crowningshield,  4  Wheat.  R.  122,  207,  per  Marshall, 
C.  J.  ;  Bank  of  Alabama  v.  Dalton,  9  How.  R.  522 ;  McEhnoyne  v 
Cohen,  13  Peters'  R.  312. 

2  Beal  v.  Nason,  2  Shepley's  R.  344  ;  Kingley  v.  Cousins,  47  Maine 
B.  91. 

3  Oriental  Bank  v.  Freeze,  6  Shepley's  R.  109  ;   Mason  v.  Haile,  12 


OBLIGATION  OF  CONTRACTS.  105 

§620.  (4.)  Stay  and  Appraisement  Laivs. — The  common 
form  of  stay  laws  is  that  in  which  an  execution  or  other  pro 
cess  is  forbidden  to  be  issued  for  some  definite  period  of  time 
after  the  recovery  of  a  judgment.  Statutes,  however,  which 
prohibit  the  injured  party  from  commencing,  or  from  prose- 
cuting an  action  for  a  certain  definite  period  of  time  after  the 
breach  of  a  contract,  are  identical  in  principle  with  stay  laws, 
and  constitute  a  particular  class  thereof.  Appraisement  laws 
are  those  which  require  the  property  of  a  judgment  debtor 
seized  on  execution  to  be  appraised,  and  forbid  its  official  sale 
for  a  price  less  than  some  determinate  portion  of  the  appraised 
value.  As  these  two  classes  of  statutes  are  generally  found 
existing  in  connection,  forming  parts  of  the  same  system  of 
state  policy,  they  may  properly  be  considered  together.  They 
are  the  most  common  methods  by  which  state  legislatures  have 
assumed  to  interfere  with  the  remedial  rights  growing  out  of 
contracts.  There  has  been  much  dispute  in  respect  to  their 
validity.  State  courts  have  generally  sustained  them.  I  do 
not  hesitate  to  say,  however,  that  so  far  as  they  are  made  ap- 
plicable to  existing  contracts,  and  abridge  the  remedial  rights 
of  the  creditor,  they  impair  the  obligation,  and  are  void.  This 
proposition  is  true  upon  principle,  and  is  supported  by  that 
judicial  authority  which  is  binding  in  matters  of  constitutional 
construction. 

§  621.  The  Supreme  Court  of  the  United  States  has  had 
occasion  to  pass  upon  the  validit}'  of  several  state  laws  of  this 
description,  and  has  uniformly  pronounced  them  void  so  far  as 
they  attempted  to  affect  existing  contracts.  In  Bronson  v. 
Kinzie,1  an  action  was  brought  to  foreclose  a  mortgage  given 
in  1838  upon  lands  in  Illinois.  At  that  time  the  holder  of  the 
mortgage  was  entitled,  by  the  law  of  the  state,  to  foreclose 
the  same  immediately  upon  a  breach  of  the  condition,  and  to 
procure  the  land  to  be  sold  absolutely  as  soon  as  could  be  done 
according  to  the  practice  of  the  courts.     In  1841  the  legisla- 

Wheat.  R.  370;  Beers  v.  Haughton,  9  Peters'  R.  329,  359  ;  Bronson  v 
Newberry,  2  Dougl.  R.  38  ;  Donelly  v.  Corbett,  3  Seld.  R.  500  ;  Fisher  v 
Lacky,  6  Blackf.  R.  373. 
1  1  Howard's  R.  311. 


i06  LAWS   AFFECTING   THE   REMEDY. 

ture  of  Illinois  passed  a  statute  providing  that  in  sales  under  a 
decree  of  mortgage-foreclosure,  the  debtor  should  have  a  right 
to  redeem  the  land  within  one  year  after  the  sale,  by  paying 
the  purchase-money  and  ten  per  centum  interest.  Another, 
statute  was  also  passed,  providing  that  there  should  be  no  sale 
of  lands  upon  execution,  or  upon  mortgage-foreclosure,  unless 
such  lands  should  first  be  appraised,  and  should  be  sold  for  at 
least  two  thirds  of  their  appraised  value.  The  action  was 
brought  subsequently  to  these  statutes,  and  the  debtor  claimed 
that  the  decree  should  be  made  in  accordance  with  this  new 
legislation  ;  that  the  sale  should  be  subject  to  his  right  of  re- 
demption, and  should  not  be  made  for  a  less  sum  than  two 
thirds  of  the  appraised  value.  The  creditor  claimed  that  the 
sale  should  be  absolute  and  for  what  the  land  would  bring. 
The  court  pronounced  the  statute  void  so  far  as  it  applied  to 
this  mortoacre,  and  ordered  an  absolute  decree  of  sale.  In 
pronouncing  the  judgment  of  the  court,  Chief  Justice  Taney 
used  the  language  quoted  in  §  615. 

§  622.  In  McCracken  v.  Hayward,1  the  effect  of  the  same 
statute  upon  execution  sales  was  examined  ;  and  it  was  de- 
clared void  so  far  as  it  applied  to  a  judgment  recovered  upon  a 
contract  existing;  at  the  time  of  its  enactment.  In  addition  to 
the  passage  from  the  opinion  of  Baldwin,  J.,  quoted  in  §  616, 
the  following  conclusions  are  instructive :  "  The  obligation 
of  the  contract  between  the  parties  in  this  case  was  to  perform 
the  promises  and  undertakings  contained  therein  ;  the  right  of 
the  plaintiff  was  to  damages  for  the  breach  thereof,  to  bring 
suit  and  obtain  a  judgment,  to  take  out  and  prosecute  an  exe- 
cution against  the  defendant  till  the  judgment  Avas  satisfied, 
pursuant  to  the  existing  laws  of  Illinois.  These  laws  giving 
these  rights  were  as  perfectly  binding  on  the  defendant,  and  as 
much  a  part  of  the  contract,  as  if  they  had  been  set  forth  in  its 
stipulations  in  the  very  words  of  the  law  relating  to  judgments 
and  executions Any  subsequent  law  which  de- 
nies, obstructs,  or  impairs  this  right,  by  superadding  a  con- 
dition that  there  shall  be  no  sale  for  any  sum  less  than  the 
value  of  the  property  levied  upon,  to  be  ascertained  by  ap- 
1  2  Howard's  R.  608. 


OBLIGATION   OF   CONTRACTS.  407 

praisement,  or  any  other  mode  of  valuation  than  a  public  sale, 
affects  the  obligation  of  the  contract,  for  it  can  be  enforced 
only  by  a  sale  of  the  defendant's  property,  and  the  prevention 
of  such  sale  is  the  denial  of  a  right.  The  same  power  in  a 
state  legislature  may  be  carried  to  any  extent  if  it  exists  at  all ; 
it  may  prohibit  a  sale  for  less  than  the  whole  of  the  appraised 
value,  or  for  three  fourths,  or  nine  tenths,  as  well  as  for  two 
thirds  ;  for  if  the  power  can  be  exercised  to  any  extent,  its  ex- 
ercise must  be  a  matter  of  uncontrollable  discretion  in  passing 
laws  relating  to  the  remedy  which  are  regardless  of  the  effect 
on  the  rights  of  the  plaintiff." 

The  same  doctrine  was  afterwards  applied  to  similar  statutes 
of  other  states  in  Grantly's  Lessee  v.  Ewing,1  and  Howard  v. 
Bugbee.2  The  state  courts  have,  in  a  few  instances,  adopted 
these  conclusions  of  the  national  judiciary,  although  they  may 
not  have  accepted,  in  its  full  scope  and  effect,  the  reasoning 
upon  which  the  conclusions  are  founded.3 

§  623.  Many  state  courts,  however,  have  disregarded  the 
rules  established  by  the  supreme  constitutional  tribunal  ;  they 
have  attempted  to  evade  the  decisions  by  refined  and  technical 
distinctions,  utterly  ignoring  the  salutary  principle  upon  which 
the  decisions  proceeded ;  or  they  have  entirely  repudiated  this 
principle,  and  asserted  a  complete  control  in  the  state  legisla- 
tures over  the  whole  subject  of  remedies.  Thus,  in  Chadwick 
v.  Moore,4  the  Supreme  Court  of  Pennsylvania  upheld  a  stat- 
ute which  enacted  that  when  lands  are  taken  on  execution 
they  shall  be  appraised,  and  if  they  do  not  bring  two  thirds  of 
the  appraised  value,  further  proceedings  shall  be  stayed  for  one 
year.  Chief  Justice  Gibson  attempted  to  distinguish  the  case 
from  that  of  McCracken  v.  Hayward,  by  asserting  that  in  the 
latter,  the  statute  of  Illinois  was  declared  void  because  it 
created  an  indefinite  stay  of  execution,  which  might  be  per- 
petual.    This  assertion  was  entirely  gratuitous,  not  warranted 

1  3  Howard's  R.  707.  2  24  Howard's  R.  461. 

3  Bunn  v.  Gorgas,  5  Wright's  R.  441  ;  Billmyer  v.  Evans,  4  Wright's  R, 
524  ;  Cargill  v.  Power,  1  Manning's  R.  369  ;  Scoby  v.  Gibson,  1  Am.  Law 
Reg.  (N.  S.)  221. 

*  &W.&.  S.  49. 


408  LAWS   AFFECTING   THE   REMEDY. 

by  any  thing  in  the  reasoning  or  the  conclusions  of  the  court. 
Besides,  the  Supreme  Court  of  the  United  States  had,  in  Bron- 
Bon  v.  Kinzie,  condemned  with  equal  emphasis  a  law  of  Illinois 
which  gave  a  mortgagor  a  year  within  which  to  redeem  his 
land,  and  thus  postponed  the  absolute  title  of  the  purchaser  for 
a  definite  period.  It  is  not  the  uncertainty  of  the  time  during 
which  a  creditor's  remedial  rights  are  postponed,  which  impairs 
the  obligation  of  his  contract,  but  the  fact  that  they  are  arbi- 
trarily postponed  at  all.  If  the  creditor  may  be  debarred  from 
pursuing  his  remedy  for  a  year  after  the  breach  of  his  contract, 
because  the  length  of  the  stay  is  fixed  and  certain,  then  another 
year  might  as  well  and  as  legally  be  added  to  the  time  of 
original  performance,  for  both  of  these  modifications  would 
produce  the  same  final  result. 

§  624.  In  1861  the  legislature  of  Pennsylvania  passed  a 
statute  staying  all  civil  process  against  persons  in  the  military 
service  of  the  state  or  of  the  United  States,  for  the  term  of 
such  service,  and  for  thirty  days  thereafter.  An  act  of  Con- 
gress had  fixed  the  term  of  service  at  three  years.  In  Breiten- 
bach  v.  Bush,1  the  Supreme  Court  held  this  stay  law  valid, 
because  the  period  of  time  during  which  the  stay  was  to  last 
was  definite,  and  the  court  considered  it  reasonable.  In 
McCormick  v.  Rnsch,2  the  Supreme  Court  of  Iowa  decided  a 
similar  statute  of  that  state  to  be  constitutional.  In  this  latter 
case,  Wright,  J.,  entered  into  a  very  elaborate  discussion  of 
the  whole  question ;  denied  that  the  remedy  forms  any  part 
of  the  obligation  ;  and  insisted  that  states  have  complete  con- 
trol over  the  subject-matter.  In  the  course  of  his  opinion  the 
learned  judge  asserts  that  the  whole  subject  would  have  been 
left  free  from  doubt  and  difficulty,  if  the  attempt  had  not  been 
made  to  include  the  remedy  within  the  obligation.  This  is 
certainly  true.  But  the  subject  would  have  been  still  simpler, 
still  more  free  from  difficulty,  if  the  Constitution  had  not  at- 
tempted to  protect  the  obligation  at  all,  but  had  left  the  con- 
tracting parties  at  the  mercy  of  the  states.  Having  placed  a 
restriction  upon  the  power  of  the  states,  the  Constitution  must 
be  fairly  construed ;  its  intent  must  be  observed  ;  indirect  vice 
1  8  Wright's  R.  313.  2  3  Am.  Law  Reg.  (N.  S.)  93. 


OBLIGATION  OF   CONTKACTS.  409 

ations  of  its  inhibitions  are  as  unlawful  as  those  which  are 
direct. 

I  need  hardly  say,  that  however  patriotic  and  laudable  may 
have  been  the  design  of  these  statutes,  they  were  plain  infrac- 
tions of  the  constitutional  provision.  Forbidding  a  suit  to  be 
brought  for  three  years,  or  to  be  prosecuted  for  three  years,  is 
the  same  in  substance  as  forbidding  a  judgment  to  be  executed 
for  three  years ;  and  both  affect  the  obligation  as  directly  and 
as  injuriously,  as  adding  three  years  to  the  agreed  time  of 
original  performance  would  do.  Whatever  aid  of  this  kind  is 
given  to  the  soldier,  should  be  given  by  Congress  ;  and  I  have 
no  doubt  that  Congress  has  full  power  to  promote  enlistments 
by  offering  such  an  advantage  to  the  volunteer. 

§  625.  (5.)  Exemptions  from  Execution.  —  Judgments  which 
direct  the  payment  of  a  certain  sum  of  money,  can  only  be 
enforced  in  a  compulsory  manner  by  seizing  and  selling  prop- 
erty of  the  judgment  debtor.  To  what  extent  this  property 
shall  be  liable  to  seizure,  is  a  matter  of  policy  for  each  state  to 
determine.  It  is  plain,  that  if  the  laws  of  a  state  should  re- 
lieve all  of  the  debtor's  property  from  this  liability,  the  legal 
obligation  of  every  contract  would  be  gone  ;  none  but  a  moral 
obligation  would  be  left.  Exemption  Laws  are  those  which 
relieve  all  or  some  portion  of  the  debtor's  property  from  lia- 
bility to  seizure  and  sale  upon  execution.  So  far  as  they  apply 
to  future  contracts,  they  only  involve  a  question  of  policy  ;  so 
far  as  they  apply  to  existing  contracts,  they  involve  the  further 
question  of  power.  To  illustrate :  At  the  time  a  contract  is 
entered  into,  all  the  debtor's  property  is  liable  to  seizure 
and  sale  on  execution,  except  certain  enumerated  articles  of 
clothing,  of  household  furniture,  and  of  food.  Subsequently 
to  the  execution  of  this  agreement,  but  before  it  has  been  com- 
pletely enforced,  the  state  legislature  enacts  a  general  statute 
by  which  other  articles  of  property  are  also  exempted,  such  as 
tools  of  a  mechanic,  a  team,  furniture  to  a  certain  amount,  a 
homestead,  and  the  like.  Would  such  a  statute  be  valid  in 
its  application  to  the  existing  contract  ?  Upon  the  principles 
already  stated,  and  upon  the  authority  of  decisions  made  by 
the  Supreme  Court  of  the  United  States,  when  we  look  not 


110  LAWS   AFFECTING   THE   REMEDY. 

merely  at  the  very  facts  to  which  these  decisions  referred,  bul 
to  the  fundamental  course  of  reasoning  without  which  they 
could  not  have  been  made,  —  the  ratio  decidendi,  —  it  is  plain 
that  the  state  law  violates  the  constitutional  provision,  that  it 
impairs  the  obligation  of  the  contract,  and  is  void.  Courts  of 
great  ability  and  of  high  authority  have,  however,  held  the 
contrary ;  and  the  current  of  state  judicial  decision  has  been 
strongly  in  favor  of  such  retro-active  enactments. 

§  626.  In  Quackenboss  v.  Danks  ]  (1845),  the  Supreme 
Court  of  New  York  decided  that  a  statute  similar  to  that  above 
described  was  void,  so  far  as  it  applied  to  existing  contraets. 
Mr.  Justice  Bronson  delivered  the  opinion  of  the  court,  and 
argued  that  the  statute  virtually  takes  a  fund  which  the  credi- 
tor could  reach  by  the  prior  law,  and  transfers  it  to  the  debtor  ; 
that  removing  all  the  property  of  the  debtor  from  the  reach  of 
the  creditor,  destroys  the  obligation  of  the  contract  entirely ; 
that  removing  a  part,  impairs  the  obligation  pro  tanto ;  that 
state  legislatures  have  no  more  power  to  do  the  latter,  than 
they  have  to  do  the  former  of  these  acts. 

In  Danks  v.  Quackenboss2  (1848),  the  same  case  was  con- 
sidered by  the  New  York  Court  of  Appeals,  and  the  judgment 
below  was  affirmed  by  an  equally  divided  court.  Four  judges 
adopted  the  reasoning  and  conclusions  of  Mr.  Justice  Bronson, 
four  judges  thought  the  statute  valid,  and  their  views  were 
presented  by  Mr.  Justice  Gardiner,  as  follows  :  The  obliga- 
tion may  be  impaired  by  laws  which  change  the  express  terms 
of  a  contract ;  or  which  change  the  existing  law  which  gives 
a  certain  force  to  these  terms  ;  also  by  laws  which  deny  a 
remedy  altogether,  or  which  burden  the  proceedings  with  new 
conditions  so  as  to  make  the  remedy  hardly  worth  pursuing  ; 
states  may  modify  the  remedy  at  pleasure  ;  the  partial  exemp- 
tion law  in  question  does  not  affect  the  contract  at  all  ;  it  only 
lets  upon  the  remedy,  but  does  not  take  away  the  remedy 
altogether,  or  place  any  unreasonable  burdens  upon  its  pur- 
suit ;  the  creditor  may  still  obtain  a  judgment  and  enforce  it 
against  such  of  the  debtor's  property  as  is  not  exempt  from 
execution. 

1  1  Denio's  R.  128.  2  1  Comstock's  R.  129. 


OBLIGATION   OF   CONTRACTS.  4L1 

In  Morse  v.  Gould  1  (1854),  the  same  question  was  again 
presented  to  the  New  York  Court  of  Appeals,  and  the  statute 
was  declared  valid.  An  elaborate  opinion  was  given  by  Mr. 
Justice  Denio,  who  followed  in  substance  the  course  of  reason- 
ing before  adopted  by  Gardiner,  J.  The  key  to  his  conclu- 
sions is  found  in  the  following  passage :  "  It  is  admitted  that  a 
contract  may  be  virtually  impaired  by  a  law  which,  without 
acting  directly  on  its  terms,  destroys  the  remedy,  or  so  em- 
barrasses it  that  the  rights  of  the  creditor,  under  the  legal 
remedies  existing  when  the  contract  was  made,  are  substan- 
tially  defeated.  With  this  necessary  qualification,  the  juris- 
diction of  the  states  over  the  legal  proceedings  of  their  courts 
is  supreme." 

The  Supreme  Court  of  Michigan  reached  the  same  result  in 
Rockwell  v.  Hubbell  2  (18-16).  These  views  were  carried  to 
an  extreme,  but  no  doubt  to  a  logical  conclusion,  by  a  court 
of  Kansas,  in  Mede  v.  Hand3  (1865).  Statutes  requiring  an 
appraisal  and  sale  for  not  less  than  two  thirds  of  the  appraised 
value,  giving  the  judgment  debtor  the  right  to  redeem  within 
one  year  after  the  sale,  and  exempting  one  hundred  and  sixty 
acres  of  land  from  execution  altogether,  were  sustained  and 
applied  to  a  prior  contract.  The  court  took  the  broad  ground 
that  the  obligation  of  a  contract  is  ended  when  a  judgment 
thereon  is  obtained. 

§  627.  I  cannot  assent  to  the  judgments  quoted  in  the  preced- 
ing paragraph.  The  able  courts  and  judges  who  pronounced 
them,  seem  to  have  fallen  into  error.  They  have  required 
that  the  obligation  of  a  contract  should  be  totally  or  virtually 
destroyed,  in  order  that  the  constitutional  prohibition  should 
become  operative.  The  Constitution  itself  demands  no  such 
extent  of  injury  ;  it  speaks  of  "  impairing  "  the  obligation, 
not  of  "  materially  impairing  "  it,  not  of  "  substantially  de- 
feating "  it.  Laws  which  determine  what  property  of  a  judg- 
ment debtor  may  be  seized  and  sold  on  execution,  do  not 
oelong  or  relate  to  the  procedure  of  courts  ;  they  affect  the 
fery  remedial  right  in  its  most  essential  part ;  they  declare  te 

1  1  Kernan's  R.  281.  2  2  Douglas'  R.  197. 

3  5  Am.  Law  Reg.  (N.  S.)  82 


412  LAWS   AFFECTING   THE   REMEDY. 

what  extent  the  contracting  party  shall  respond  to  his  under- 
taking. Exempting  all  a  debtor's  property  would  confessedly 
destroy  the  obligation,  for  it  would  remove  the  only  fund  from 
which  a  compensation  can  be  obtained  ;  exempting  a  part  of 
a  debtor's  property,  in  that  it  would  diminish  this  fund  and 
would  render  the  security  more  precarious,  would  as  plainly 
impair  the  obligation  of  all  existing  contracts. 

A  very  late  judgment  of  the  Supreme  Court  of  the  United 
States  seems  to  support  these  views,  and  to  be  entirely  irre- 
concilable with  the  reasoning  and  conclusions  adopted  by  the 
New  York  court.  A  statute  of  the  State  of  Maine  had  incor- 
porated a  certain  railway  company ;  the  shares  of  the  stock- 
holders were  made  liable  for  the  debts  of  the  corporation  ;  in 
case  of  a  deficiency  of  corporate  property  liable  to  be  seized  on 
execution,  the  individual  property  of  a  shareholder,  to  the 
amount  of  his  stock,  was  made  liable  to  be  seized  on  execution 
issued  upon  a  judgment  recovered  against  the  corporation. 
This  statute  was  afterwards  repealed.  It  will  be  noticed  that 
the  original  charter  designated  the  property  liable  to  be  seized 
on  execution  against  the  company  ;  the  repealing  statute  with- 
drew a  portion  of  this  property,  or,  in  other  words,  exempted  a 
portion  of  this  property  from  execution,  although  all  the  prop- 
erty owned  by  the  corporation  was  still  left  liable  to  seizure 
and  sale.  In  Hawthorne  v.  Calef *  (186-1),  the  validity  of  this 
repealing  statute  was  denied.  Mr.  Justice  Nelson  said,  Avhile 
delivering  the  opinion  of  the  court : 2  *'  There  is  another  view 
of  the  case  which  we  think  equally  conclusive.  This  view 
rests  upon  a  principle  decided  in  Bronson  v.  Kinzie,  and  the 
several  subsequent  cases  of  this  class.  .  .  .  Applying  the 
principle  of  this  class  of  cases  to  the  present  one,  by  the  clause 
in  the  charter  subjecting  the  property  of  the  stockholder,  he 
becomes  liable  to  the  creditor  to  the  extent  of  his  stock.  The 
creditor  had  this  security  when  the  debt  was  contracted  with 
the  company,  over  and  above  its  responsibility.  This  remedy 
-he  repealing  act  has  not  merely  modified  to  the  prejudice  of 
the  creditor,  but  has  altogether  abolished,  and  thereby  im- 
paired the  obligation  of  his  contract  with  the  company."  This 
i  2  Wallace's  R.  10.  2  Ibid.  23. 


OBLIGATION  OF  CONTRACTS.  413 

decision,  and  this  reasoning  of  the  court  cover  the  general 
case  under  discussion.  If  all  the  property  of  a  debtor  was 
liable  to  execution  when  the  contract  was  entered  into,  then 
the  creditor  had  this  security  of  the  entire  property.  Re- 
moving a  portion  of  this  property  from  its  liability  to  execu- 
tion, does  not  merely  modify  the  remedy  of  the  creditor  in 
respect  to  the  property  thus  removed,  but  absolutely  destroys 
it,  and  therefore  impairs  the  whole  obligation  of  the  contract. 


CHAPTER  V. 

THE  EXECUTIVE  POWERS  OF  THE  UNITED  STATES  GOVERNMENT 

§  628.  In  considering  the  amount  and  nature  of  the  author 
ity  committed  by  the  people  of  the  United  States  to  the  na- 
tional government,  we  are  now  brought  to  an  examination  of 
the  powers  and  functions  of  the  Executive  department.  The 
provisions  of  the  Constitution  which  specially  concern  this  de- 
partment are  grouped  in  Article  II.,  as  follows  :  Section  I. 
declares  that  "  The  executive  power  shall  be  vested  in  a  Presi- 
dent of  the  United  States  of  America,"  and  proceeds  to 
describe  the  manner  of  choosing  the  President  and  Vice- 
President  ;  the  eligibility  of  persons  to  those  offices  ;  the  terms 
of  office  ;  and  the  proceedings  in  case  of  the  death,  removal, 
or  other  disability  of  the  President.  Section  II.  provides  that, 
"The  President  shall  be  commander-in-chief  if  the  army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several 
states,  when  called  into  the  actual  service  of  the  United  States  ; 
he  may  require  the  opinion  in  writing  of  the  principal  officer 
in  each  of  the  executive  departments,  upon  any  subject  relat- 
ing to  the  duties  of  their  respective  offices  ;  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offences  against  the 
United  States,  except  in  cases  of  impeachment.  He  shall  have 
power,  by  and  with  the  advice  and  consent  of  the  Senate,  to 
make  treaties,  provided  two  thirds  of  the  senators  present  con- 
cur ;  and  he  shall  nominate,  and  by  and  with  the  advice  and 
consent  of  the  Senate,  shall  appoint  ambassadors,  other  public 
ministers  and  consuls,  judges  of  the  Supreme  Court,  and  all 
other  officers  of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  established 
by  law :     But  the  Congress  may  by  law  vest  the  appointment 


EXECUTIVE   POWERS.  415 

of  such  inferior  officers  as  they  think  proper,  in  the  President 
alone,  in  the  courts  of  law,  or  in  the  heads  of  departments. 
The  President  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  granting  com- 
missions which  shall  expire  at  the  end  of  their  next  session." 

Section  III.  is  as  follows  :  "  He  shall  from  time  to  time  give 
to  the  Congress  information  of  the  state  of  the  Union,  and 
recommend  to  their  consideration  such  measures  as  he  shall 
judge  necessary  and  expedient ;  he  may,  on  extraordinary 
occasions,  convene  both  houses,  or  either  of  them,  and,  in  case 
of  disagreement  between  them  with  respect  to  the  time  of  ad- 
journment, he  may  adjourn  them  to  such  time  as  he  shal. 
think  proper ;  he  shall  receive  ambassadors  and  other  public 
ministers ;  he  shall  take  care  that  the  laws  be  faithfully  exe- 
cuted, and  shall  commission  all  the  officers  of  the  United 
States." 

Section  IV.  provides,  "  The  President,  Vice-President,  and 
all  civil  officers  of  the  United  States,  shall  be  removed  from 
office  on  impeachment  for,  and  conviction  of,  treason,  bribery, 
or  other  high  crimes  and  misdemeanors." 

Section  I.,  §  8,  is  in  these  words  :  "  Before  he  enter  on  the 
execution  of  his  office,  he  shall  take  the  following  oath  or  affir- 
mation :  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States,  and  will, 
to  the  best  of  my  ability,  preserve,  protect,  and  defend  the 
Constitution  of  the  United  States." 

§  629.  It  is  evident  that  these  several  grants  of  power  to 
the  President  are  not  arranged  in  the  Constitution  according 
to  any  plan  or  scheme  of  order.  Some  of  them  are  so  entirely 
ministerial  or  formal,  that  no  time  or  space  need  be  taken  up 
with  their  consideration.  In  this  class  are  the  power  to  re- 
quire an  opinion  in  writing  from  the  heads  of  departments,  the 
power  to  call  extraordinary  sessions  of  Congress,  or  of  either 
house  thereof,  the  power  to  adjourn  Congress  in  one  emer- 
gency, and  the  power  to  issue  commissions  to  all  officers  of  the 
United  States.  Disregarding,  therefore,  the  order  in  which 
the  powers  of  the  President  are  arranged  in  the  second  article 
of  the  Constitution,  I  shall  treat  of  the  more  important  in  the 
following  manner : 


416  NATURE   OF  EXECUTIVE   TOWERS. 

First.  The  general  nature  of  the  Executive  department  and 
of  the  Executive  functions. 

Secondly.  The  power  by  which  the  instruments  and  means 
for  discharging  almost  all  other  executive  functions  are  created, 
or  the  power  to  appoint  officers. 

Thirdly.  The  general,  sweeping,  and  inclusive  executive 
power  to  take  care  that  the  laws  shall  be  faithfully  executed. 

Then,  taking  up  the  special  functions,  which  are  to  a 
greater  or  less  degree  independent  of  the  legislature,  I  shall 
consider, 

Fourthly.  The  power  to  control  and  manage  the  external 
relations  of  the  country,  and  many  of  the  internal  relations, 
through  the  means  of  treaties,  and  of  diplomatic  communica- 
tions with  foreign  governments. 

Fifthly.     The  pardoning  power. 

Sixthly.  The  power  to  give  information  to  Congress,  and 
to  recommend  measures  to  their  consideration. 

Seventhly.  The  powers  of  commander-in-chief,  or  the  mili- 
tary and  war  powers  ;  and 

Lastly.  The  responsibility  of  the  President,  and  his  liability 
to  an  impeachment. 

SECTION   I. 

THE  GENERAL  NATURE  OF  THE  EXECUTIVE  DEPARTMENT  AND  OF 
THE  EXECUTIVE  FUNCTIONS. 

§  630.  The  Constitution  declares  that  the  Executive  power 
shall  be  vested  in  a  President  of  the  United  States.  The 
meaning  of  this  clause  is  that  he  is  the  head  of  that  depart- 
ment ;  that  all  its  powers  and  functions  immediately  or  medi- 
ately centre  in  him,  and  that  he  and  he  alone  is  ultimately 
responsible  for  their  due  execution.  Certainhy  it  was  never 
contemplated  by  the  Constitution  that  he  alone  was  to  perform 
anaided  all  the  enormous  detail  of  executive  duties  which  fall 
to  this  department.  These  must  of  necessity  be  carried  on  by  a 
vast  retinue  of  subordinate  officers,  of  various  grades  and  func- 
tions ;   but  all   these  officers  represent  the  Chief  Magistrate. 


EXECUTIVE  POWERS.  417 

In  fact,  then,  the  Executive  department  includes  the  President 
as  its  head,  as  the  embodiment  of  Executive  power,  and  the 
inferior  ministerial  officers, — the  cabinet,  the  foreign  minis- 
ters, the  revenue  agents,  the  postal  agents,  the  marshals,  the 
law  agents,  and  the  like,  —  who  are  but  representatives  of,  and 
answerable  to,  the  Chief  Magistrate.  He  acts  through  them, 
they  are  his  means  and  instruments  for  performing  Executive 
functions. 

§  631.  It  should  be  carefully  borne  in  mind  that  the  President 
is  an  independent,  co-ordinate  department  of  the  government. 
The  grand  theory  of  the  Constitution  makes  him  a  co-equal  in 
the  tri-partite  organization.  He  draws  his  power  from  the 
same  source  as  the  national  legislature  and  judiciary  ;  he  is 
answerable  to  neither  ;  his  discretion  is  as  absolute  as  that  of 
any  legislator,  and  more  so  than  that  of  any  judge  ;  no  other 
branch  of  the  government  may  rightfully  interfere  with  him  in 
the  exercise  of  that  discretion ;  he  can  only  be  reached  by  an 
impeachment,  when  he  has  used  his  discretion,  not  merely  in 
a  mistaken  or  even  arbitrary  manner,  but  in  a  corrupt  or  crim- 
inal manner. 

§  632.  It  is  true  that  Congress  is  authorized  by  Article  I., 
Section  VIII.,  §  18,  "  to  make  all  laws  which  shall  be  neces- 
sary and  proper  for  carrying  into  execution  all  powers  vested 
by  this  Constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof."  But  this  clause  does 
not  enable  Congress  to  enlarge  the  capacity  with  which  the 
President  is  independently  clothed  by  the  organic  law  ;  much 
less  does  it  enable  Congress  to  restrict,  limit,  or  abridge  that 
capacity.  This  grant  to  the  legislature  is  intended  as  ancillary 
merely  ;  it  empowers  that  body  to  aid  the  President  in  the 
discharge  of  his  executive  functions  ;  it  may  create  opportuni- 
ties or  occasions  for  calling  those  functions  into  play.  But 
Congress  may  not  directly  or  indirectly  establish  another  Ex- 
ecutive than  the  President,  either  with  complete  or  with  partial 
powers  and  capacities.  "  The  Executive  power  shall  be  vested 
in  a  President."  "  He  shall  take  care  that  the  laws  be  faith- 
fully executed."  The  language  is  not  that  he  shall  execute 
the  laws ;  and  Congress  may  therefore  create  subordinate 
27 


418  NATURE   OF   EXECUTIVE  POWERS. 

offices,  and  may  define  the  duties  of  the  officers  in  the  moat 
positive  manner,  so  that  they  shall  be  clothed  with  no  discre- 
tion. Such  officers  would  actually  execute  the  laws  ;  and  the 
great  mass  of  positive  laws  have  been  thus  executed  from  the 
commencement  of  the  government  ;  and  this  arrangement  ap- 
pears to  be  absolutely  necessary.  But  still  the  President  must 
be  left  free  to  "  take  care  that  the  laws  be  faithfully 
cuted  ;  "  that  is,  free  to  take  care  that  the  subordinate  officers, 
who  are  charged  with  express,  positive  duties,  in  fact  perform 
those  duties  faithfully.  Any  attempt  to  clothe  a  subordinate 
official  agent,  whether  of  a  high  or  of  a  low  grade,  with  ex- 
press, positive  duties  which  he  must  fulfil  to  the  letter,  or  with 
duties,  in  the  fulfilment  of  which  he  has  a  discretion,  and  to 
remove  him  entirely  from  the  control  of  the  President,  to  make 
him  entirely  independent  of  the  Chief  Magistrate,  —  any  such 
attempt  would  be  directly  contrary  both  to  the  letter  and  to 
the  spirit  of  the  Constitution.  It  would  be  so  far  a  vesting  the 
Executive  power  in  a  person  other  than  the  President ;  and  it 
would  so  far  deprive  the  President  of  the  express  power  con- 
ferred upon  him  to  "  take  care  that  the  laws  be  faithfully  exe- 
cuted." Great  as  is  the  legislative  function,  the  people  of  the 
United  States  have  never  authorized  their  Congress  to  con- 
struct a  new  Constitution. 

§  633.  The  powers  conferred  upon  the  President  are  largely, 
almost  entirely,  political ;  and  his  acts,  by  which  those  powers 
are  exercised,  are  equally  political,  as  much  so  as  the  act  of  a 
legislator  in  voting  for  or  against  a  proposed  statute.  Being 
thus  political,  they  can  rarely  be  brought  within  the  scope  of  a 
judicial  examination  in  the  ordinary  administration  of  justice. 
Whenever  thus  examined,  it  is  not  the  direct  personal  act  of 
the  President  which  is  submitted  to  this  scrutiny,  but  the  act 
of  some  inferior  ministerial  officer,  who  is  in  theory,  and  per- 
haps in  practice,  the  direct  instrument  for  exercising  the  exec- 
utive function.  Laws  of  Congress  are  always  examinable,  and 
are  frequently  examined  by  the  courts,  and  pronounced  valid 
or  void.  But  even  here  the  examination  cannot  take  place 
until  some  attempt  has  been  made  to  carry  the  law  into  exe- 
cution, so  that  some  individual  rights  are  affected.     When  the 


EXECUTIVE  POWERS.  419 

law  is  thus  brought  before  the  court  having  jurisdiction,  that 
tribunal  pronounces  directly  upon  the  question  whether  there 
be  any  such  law;  whether  there  be  any  thing  which  the  exec- 
utive department  can  execute.  Thus  the  powers  of  the  Presi- 
dent may  be  questioned  in  an  incidental  manner  ;  those  of  his 
subordinates  may  be  questioned  in  a  direct  manner  ;  for  these 
powers,  in  each  particular  case,  must  be  based  upon  some  af- 
firmative constitutional  grant,  or  upon  some  existing  law  made 
pursuant  to  the  Constitution,  which  may  be,  or  ought  to  be, 
enforced. 

§  634.  But  it  should  be  noticed  that  even  here  the  courts, 
whatever  authority  they  may  possess  over  subordinate  minis- 
terial officers,  do  not,  and  cannot,  examine  the  nature  and 
character  of  the  President's  acts,  outside  of  the  question 
whether  there  be  a  valid  law,  or  an  affirmative  constitutional 
grant,  as  the  foundation  and  support  of  those  acts  ;  and  do 
not,  and  cannot,  directly  examine  the  President's  personal  acts, 
or  restrain  or  control  him  in  the  exercise  of  his  official  func- 
tions, even  though  it  be  alleged  that  there  is  no  valid  law,  or 
affirmative  constitutional  grant,  to  authorize  and  support  such 
act.  These  principles  were  clearly  set  forth  by  Chief  Justice 
Marshall  in  Marbury  v.  Madison,1  and  were  affirmed  and  es- 
tablished by  the  Supreme  Court  of  the  United  States  in  the 
State  of  Mississippi  v.  Andrew  Johnson.2 

Thus,  if  we  could  suppose  the  case  that  all  existing  statutes 
of  Congress  should  be  entirely  repealed,  and  the  country 
should  be  left  absolutely  without  any  national  legislation,  it  is 
plain  that  a  large  portion  of  the  powers  and  duties  of  the  Presi- 
dent, and  all  the  powers  and  duties  of  his  subordinates,  would 
immediately  become  suspended,  and  would  only  be  revived 
when  Congress  should  again  resume  its  work  of  creating  posi- 
tive law.  In  other  words,  although  the  capacity  of  the  Presi- 
dent to  discharge  his  entire  range  of  functions  always  exists, 
and  is  uncontrolled  and  uncontrollable  by  Congress  or  by  the 
courts,  yet  the  opportunities  and  occasions  to  exert  these 
powers,  and  th3refore  the  extent  and  number  of  the  powers 
themselves,  do  and  must  rest  largely  upon  the  prior  exercise 
1  1  Cranch's  R.  137.  24  Wallace's  h  475 


120  NATURE   OF  THE   EXECUTIVE   POWERS. 

of  the  legislative  will.  This  is  peculiarly  true  of  that  great 
mass  of  subordinate  civil  officers  whose  creation  is  within  the 
authority  of  Congress.  These  persons  are  appointed  to  fill 
official  positions  ;  the  very  offices  themselves  are  established  to 
carry  out  and  enforce  certain  special  laws,  or  classes  of  laws ; 
the  functions  and  duties  are  defined ;  there  is  no  discretion 
allowed  ;  the  number  and  scope  of  these  functions  and  duties 
depend,  therefore,  upon  the  legislative  act  which  lies  back  of 
all  this  mode  of  execution.  But  while  in  great  measure  the 
opportunities  and  occasions  for  the  President  to  use  powers, 
and  the  number  and  scope  of  those  powers  themselves,  do  in 
fact,  and  must  by  any  theory,  largely  depend  upon  a  prior  ex- 
ercise of  the  legislative  will,  this  is  not  completely  and  abso- 
lutely true.  And  this  leads  me  to  consider  the  nature  of  the 
President's  executive  attributes  and  functions  in  their  totality, 
and  the  classes  into  which  they  necessarily  separate  them- 
selves. 

§  635.  There  are  three  independent  classes  of  executive  at- 
tributes and  functions,  all  resulting  from  the  provisions  of  the 
national  Constitution. 

First.  As  the  President  is  an  independent,  co-ordinate 
branch  of  the  government,  and  as  the  Constitution  contains 
some  express  affirmative  grants  of  power  to  him  alone,  there 
are  and  must  be  certain  attributes  and  functions  which  have 
no  connection  with  proper  legislation  ;  which  are  completely 
•onferred  by  the  terms  of  the  organic  law  ;  which  do  not  de- 
pend upon  any  prior  statutes  for  the  opportunities  or  occasions 
of  their  exercise,  nor  for  their  number  and  scope ;  which 
would  still  exist  and  might  still  be  carried  into  operation,  if 
Congress  should  blot  out  all  its  laws,  or  should  attempt  to  re- 
strain and  limit  the  President,  in  his  official  proceedings,  from 
calling  them  into  action.  Such  suppositions  as  the  latter  are, 
of  course,  violent,  and  perhaps  absurd  ;  but  they  serve  to  draw 
the  line  of  demarcation  between  the  various  kinds  and  classes 
of  executive  attributes,  and  to  point  out  the  relations  between 
the  departments  of  the  general  government. 

§  636.  In  respect  to  the  executive  powers  which  fall  within 
this  class,  the  President  is  clothed  with  an  absolute,  unlimited 


EXECUTIVE   POWERS.  421 

discretion.  The  acts  done  by  virtue  of  these  powers  are  com- 
pletely political.  The  subjects  themselves,  over  which  the 
powers  extend,  do  not  fall  within  the  province  of  Congressional 
legislation  ;  and  that  body  cannot  by  any  laws  enlarge  or  di- 
minish the  President's  capacity ;  it  can  do  nothing  more  than 
pass  such  laws,  if  it  thinks  proper,  as  shall  aid  the  Chief  Magis- 
trate in  the  execution  of  these  powers.  Nor  may  the  courts 
interfere,  and  assume  to  regulate  the  President's  conduct. 
His  great  responsibility  is  to  the  people  ;  and  the  sole  official 
check  is  his  liability  to  an  impeachment. 

By  far  the  most  important  function  of  this  class  is  that  which 
relates  to  the  management  of  foreign  affairs,  and  includes  the 
power  to  make  treaties  with  the  consent  of  the  Senate,  and  the 
power  to  receive  and  hold  communication  with  foreign  minis- 
ters. Of  far  less  moment  are  the  powers  to  furnish  informa- 
tion to  Congress,  to  recommend  measures,  to  convene  either  or 
both  houses,  and  to  adjourn  the  Congress  in  a  certain  emer- 
gency. 

No  doubt  these  independent  and  absolute  attributes  of  the 
President  would  be  barren  of  any  great  results  without  the 
co-operation  of  the  other  departments,  and  especially  of  the 
legislature  ;  but  it  is  certainly  possible  to  suppose  that  they 
should  exist  and  be  exercised  separately.  By  thus  supposing 
a  case  where  one  department  should  act  entirely  alone,  we  are 
able  to  clear  up  and  fix  our  conceptions  of  their  respective  in- 
dependent and  mutually  dependent  functions  while  they  act 
together. 

§  637.  Second.  The  second  class  of  executive  attributes 
and  functions  are  those  which  depend  upon  some  prior  statute 
of  Congress  for  the  opportunities  and  occasions  upon  which 
they  may  be  exercised.  The  constitutional  grants  of  power 
are  affirmative  and  express  ;  but  they  relate  to  such  a  class  of 
acts,  that  Congress  must  furnish  the  subject-matter  upon  which 
the  power  may  be  exerted.  But  even  here,  the  legislature  has 
exhausted  its  authority  when  it  has  furnished  the  occasion  or 
opportunity.  The  executive  attributes  having  been  brought  into 
olay,  the  discretion  of  the  President  is  as  absolute  and  unlimit- 
ed as  in  the  cases  embraced  within  the  former  class.    His  rower 


422  NATURE   OF  EXECUTIVE  TOWERS. 

»s  full  and  complete,  and  belongs  to  him  by  the  express  terms 
of  the  organic  law;  the  legislature  may  pass  laws  proper  and 
necessary  to  aid  him,  if  needed,  in  the  execution  of  this  power, 
but  may  not  lawfully  increase  or  abridge  it.  The  same  discre- 
tion also  extends  to  those  subordinates  who  may  be  employed 
to  exercise  in  fact  this  class  of  executive  functions.  Indeed 
their  acts  are,  in  such  cases,  his  acts  ;  their  discretion  is  his 
discretion.  The  only  manner  in  which  Congress  may  curtail 
the  number  and  scope  of  these  attributes  and  functions  held  by 
the  President,  is  by  diminishing  or  removing  the  opportunities 
and  occasions  upon  which  they  are  called  into  operation. 

The  most  important  of  these  functions  are  those  belonging 
to  the  commander-in-chief,  the  pardoning  power,  and  the  ap- 
pointing power.  The  President's  capacity  as  commander-in- 
chief  certainly  remains  dormant  until  Congress  has  raised  an 
army,  has  constructed  a  navy,  or  has  provided  for  calling  forth 
the  militia ;  his  pardoning  power  cannot  be  exercised  until 
Congress  has  denned  crimes  and  apportioned  punishments ; 
his  power  to  appoint  officers  cannot  be  exerted  until  Congress 
has  created  the  offices  which  may  be  filled. 

§  638.  Third.  The  third  class  of  executive  attributes  and 
functions  are  those  which  depend  upon  some  prior  laws  of 
Congress  not  only  for  the  opportunities  and  occasions  of  their 
exercise,  but  for  their  number,  character,  and  scope.  Over 
this  class  the  legislature  has  a  more  complete  control.  It 
passes  laws  which  must  be  executed.  No  discretion  need  be 
left  in  the  President.  Indeed,  the  actual  execution  may  be 
intrusted  to  designated  subordinate  officers,  and  these  officers 
may  be  directed  in  the  plainest  and  most  positive  terms  what 
steps  to  take,  what  duties  to  perform.  In  such  cases  the  only 
duty  of  the  President  is  to  "  take  care  that  the  laws  be  faith- 
fully executed."  This  class  evidently  embraces  by  far  the 
greater  part  of  the  Congressional  legislation,  and  of  the  exec- 
utive functions  based  thereon. 

§  639.  "We  have  thus  seen,  that  with  respect  to  the  func- 
tions included  in  the  first  and  second  classes,  the  President  is 
clothed  with  a  complete  discretion.  Many  of  the  acts  done  by 
virtue  thereof,  he  does  himself;  they  are  the  result  of  his  own 


EXECUTIVE  POWERS.  423 

rolition.  Many  of  these  acts,  however,  are  done  by  subordi- 
nate officers,  who  to  this  extent  represent  the  Chief  Magistrate. 
But  in  respect  to  the  functions  included  in  the  third  class,  the 
President  may  be  deprived  of  all  discretion  ;  special  officers 
may  be  charged  by  Congress  with  the  duty  of  enforcing  its 
measures.  Such  officers  are  subject  to  a  double  liability.  As 
the  laws  of  Congress  indicate  the  exact  scope  of  their  public 
duties,  an  injured  party  may  obtain  redress  against  them 
through  the  courts  for  any  transgression  of  those  duties  ;  and  a 
party,  whom  the  laws  have  clothed  with  a  positive  right,  may 
invoke  the  aid  of  a  court  having  jurisdiction,  to  compel  them 
to  perform  their  duties.  These  ministerial  officers  must  also 
be  responsible  to  the  President  for  the  manner  in  which  they 
carry  out  the  mandates  of  Congress,  or  else  he  would  be  de- 
prived of  the  power  given  him  by  the  Constitution  to  "  take 
care  that  the  laws  be  faithfully  executed."  The  only  method 
by  which  this  responsibility  can  be  made  effective,  is  a  removal 
of  the  delinquent  subordinate  from  his  office. 

§  640.  The  views  set  forth  in  the  foregoing  paragraphs  were 
very  clearly  stated  and  maintained  by  Chief  Justice  Marshall 
in  the  great  case  of  Marbury  v.  Madison.1  He  says :  "  By 
the  Constitution  of  the  United  States  the  President  is  invested 
with  certain  important  political  powers,  in  the  exercise  of  which 
he  is  to  use  his  own  discretion,  and  is  accountable  only  to  his 
country  in  his  political  character,  and  to  his  own  conscience. 
To  aid  him  in  the  performance  of  these  duties,  he  is  authorized 
to  appoint  certain  officers,  who  act  by  his  authority  and  in 
conformity  with  his  orders.  In  such  cases  their  acts  are  his 
acts  ;  and  whatever  opinion  may  be  entertained  of  the  manner 
in  which  executive  discretion  may  be  used,  still  there  exists 
and  can  exist  no  power  to  control  that  discretion.  The  sub- 
jects are  political.  They  respect  the  nation,  not  individual 
rights,  and  being  intrusted  to  the  Executive,  the  decision  of 
the  Executive  is  conclusive.  The  application  of  this  remark 
will  be  perceived  by  adverting  to  the  Act  of  Congress  for  es- 
tablishing the  Department  of  Foreign  Affairs.  This  officer,  as 
his  duties  were  prescribed  by  that  a?-t,  is  to  conform  precisely  to 
l  1  Cranch's  R.  137,  165. 


124  NATURE    OF  EXECUTIVE   POWERS. 

the  will  of  the  President.  He  is  the  mere  organ  by  whom  that 
will  is  communicated.  The  acts  of  such  an  officer,  as  an  officer, 
can  never  be  examinable  by  the  courts.  But  when  the  legisla- 
ture proceeds  to  impose  on  that  officer  other  duties  ;  when  he  is 
directed  peremptorily  to  perforin  certain  acts  ;  when  the  rights 
of  individuals  are  dependent  on  the  performance  of  those  acts  ; 
he  is  so  far  the  officer  of  the  law,  is  amenable  to  the  laws  for 
his  conduct,  and  cannot  at  his  discretion  sport  away  the  vested 
rights  of  others.  The  conclusion  from  this  reasoning  is,  that 
where  the  heads  of  departments  are  the  political  or  confidential 
agents  of  the  Executive,  merely  to  execute  the  will  of  the 
President,  or  rather,  to  act  in  cases  in  which  the  Executive 
possesses  a  constitutional  or  legal  discretion,  nothing  can  be 
more  perfectly  clear  than  that  their  acts  are  only  politically 
examinable.  But  where  a  specific  duty  is  assigned  by  law, 
and  individual  rights  depend  upon  the  performance  of  that 
duty,  it  seems  equally  clear  that  the  individual  who  considers 
himself  injured,  has  a  right  to  resort  to  the  laws  of  his  country 
for  a  remedy." 

§  641.  It  is  evident  from  the  foregoing  analysis,  that  the 
plan  of  government  adopted  in  the  Constitution  is  very  differ- 
ent from  that  which  is  practically  operative  in  Great  Britain. 
So  far  as  the  President  has  executive  functions  directly  con- 
ferred upon  him,  he  is  independent  of  Congress.  It  was  never 
intended  that  the  legislature  should  draw  to  itself  the  duty 
of  administering  the  laws  which  it  makes.  There  is  danger, 
it  cannot  be  doubted,  lest  the  Congress  should  trench  upon 
the  attributes  of  the  Executive.  This  is  not  done  by  inter- 
fering with  the  class  of  powers  first  above  stated  (§§  635,  636). 
The  subject-matter  of  these  powers  lies  so  plainly  beyond 
the  sphere  of  the  legislature,  that  any  assertion  of  jurisdiction 
over  them  is  hardly  to  be  anticipated.  The  tendency,  if  it 
exist  at  all,  is  to  control  the  President  in  the  exercise  of  his 
functions  of  the  second  class  (§  637)  ;  or  to  commit  those  of 
the  third  class  (§  638),  to  subordinates,  and  to  limit  and  re- 
strain the  President  in  any  practical  exercise  over  those  sub- 
ordinates, of  his  power  to  "  take  care  that  the  laws  be  faith- 
fully executed."     I  need   hardly  say  that  such  legislation  is 


EXECUTIVE   POWERS.  425 

opposed  to  the  spirit  of  the  organic  law  ;  and  if  it  became  gen- 
eral, would  break  down  the  independence  of  the  Executive, 
and  practically  reduce  the  government  to  a  single  political 
branch. 

SECTION  II. 

THE   POWER    TO   APPOINT   OFFICERS. 

§  642.  We  are  now  prepared  to  take  up  and  consider  the 
various  classes  of  executive  powers  in  the  order  already  men- 
tioned. I  examine,  in  the  first  place,  the  Power  of  Appoint- 
ment, because  the  officers,  in  all  their  various  subordinate 
grades,  are  the  means  and  instruments  by  which  the  laws  shall 
be  executed,  and  the  general  functions  and  duties  of  the  de- 
partment performed.  The  provisions  of  the  Constitution  on 
this  subject  are  as  follows  :  "  He  [the  President]  shall  nomi- 
nate, and  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint  ambassadors,  other  public  ministers  and  consuls, 
judges  of  the  Supreme  Court,  and  all  other  officers  of  the 
United  States,  whose  appointments  are  not  herein  otherwise 
provided  for,  and  which  shall  be  established  by  law.  But  the 
Congress  may,  by  law,  vest  the  appointment  of  such  inferior 
officers  as  they  think  proper  in  the  President  alone,  in  the 
courts  of  law,  or  in  the  heads  of  departments.  The  President 
shall  have  power  to  fill  up  all  vacancies  that  may  happen  dur- 
ing the  recess  of  the  Senate,  by  granting  commissions  which 
shall  expire  at  the  end  of  their  next  session." 

Certain  officers  ai*e  provided  for  in  the  Constitution,  and  the 
method  of  their  choice  or  election  is  also  strictly  defined  in 
that  instrument.  These  are  the  President  and  Vice-President, 
the  Presidential  Electors,  the  Members  of  the  Senate  and  of 
the  House  of  Representatives.  Article  I.,  Sections  II.  and 
III.,  give  exclusive  power  to  each  house  of  Congress  to  choose 
its  own  officers.  Article  III.,  Section  I.,  declares  that  the 
judicial  department  shall  consist  of  one  Supreme  Court,  and 
of  such  inferior  courts  as  Congress  shall  from  time  to  time 
ordain  and  establish.  The  number  of  the  judges  is  left  en- 
tirely to  the  Congress ;  but   the  article  requires  that  all  the 


126  THE  POWER   OF  APPOINTMENT. 

judges  when  appointed  shall  hold  their  offices  during  good  be- 
havior. It  will  be  seen,  therefore,  that  a  very  few  offices 
and  officers  are  entirely  beyond  the  control  of  either  Congress 
or  President  ;  that  a  very  few  are  entirely  under  the  control 
of  the  respective  houses  of  Congress  ;  that  the  judges  when 
appointed, — as  long  as  the  courts  shall  exist,  —  are  beyond 
the  control  of  Congress  or  President,  because  they  cannot  be 
removed  during  good  behavior,  nor  can  their  salaries  be 
diminished  during  their  terms  of  office. 

§  643.  In  regard  to  the  great  mass  of  subordinate  officers, 
Congress  and  the  President  have  correlative  powers  ;  neither 
can  act  without  the  other.  Congress  has  full  power  to  create  the 
office  by  law  ;  to  fix  the  compensation  ;  to  allot  the  powers  and 
duties  ;  to  prescribe  general  qualifications  or  conditions,  such  as 
that  security  shall  be  given  for  a  faithful  discharge  of  duties,  and 
perhaps  personal  qualifications,  such  as  lo}^alty  ;  and,  I  have 
no  doubt,  to  regulate  the  term  of  office.  This  done,  the  power 
of  Congress  ceases ;  they  can  do  no  direct  act  towards  filling 
the  office.  Such  act  is  the  sole,  independent  function  of  the 
President,  by  and  with  the  consent  of  the  Senate  ;  except  that 
in  the  case  of  "  inferior  officers,"  the  appointment  may  be 
vested  by  law  in  the  President  alone,  or  in  the  courts,  or  in 
the  heads  of  departments,  without  requiring  the  Senate's  con- 
sent. What  class  of  officers  come  within  the  designation  of 
"inferior,"  has  never  been  established,  and  cannot  be  deter- 
mined with  any  precision  and  certainty.  The  practical  con- 
struction which  Congress  has  placed  upon  the  clause,  confines 
its  operation  to  those  public  agents  whose  duties  are  quite  sub- 
ordinate. 

§  644.  When  the  Constitution  was  first  submitted  to  the 
people  for  adoption,  many  persons  of  great  ability  and  expe- 
rience, as  well  as  many  others  who  were  only  demagogues, 
attacked  the  proposed  scheme  with  vigor  and  persistence. 
These  attacks  were  largely  directed  against  the  plan  for  an 
Executive;  and  among  others  of  his  powers  which  were  ob- 
jected to,  none  was  opposed  more  bitterly  than  the  power 
of  appointment.  As  a  clear  statement  of  these  objections,  I 
will  quote  from  the  celebrated  letter  of  Luther  Martin  to  tho 


THE  POWER  OF  APPOINTMENT.  427 

Maryland  Legislature.  Mr.  Martin  was  certainly  one  of  the 
ablest  lawyers  of  his  time,  and  had  been  a  member  of  the  Con- 
stitutional Convention.  He  says:1  "To  that  part  of  this 
article  which  gives  the  President  a  right  to  nominate,  and 
with  the  consent  of  the  Senate,  appoint  all  the  officers  civil 
and  military  of  the  United  States,  there  was  considerable  op- 
position. It  was  said  that  the  person  who  nominates,  will 
always  in  reality  appoint,  and  that  this  was  giving  the  Presi- 
dent a  power  and  influence  which,  together  with  the  other 
powers  bestowed  upon  him,  would  place  him  above  all  restraint 
and  control.  In  fine,  it  was  urged  that  the  President  as  here 
constituted,  was  a  King  in  every  thing  but  the  name  ;  that 
though  he  was  to  be  chosen  for  a  limited  time,  yet,  at  the  ex- 
piration of  that  time,  if  he  is  not  re-elected,  it  will  depend 
entirely  upon  his  own  moderation  whether  he  will  resign  that 
authority  with  which  he  has  once  been  invested  ;  that  from 
his  having  the  appointment  of  all  varieties  of  officers  in  every 
part  of  the  civil  department,  who  will  be  very  numerous  in 
themselves  and  their  connections,  relations,  friends,  and  de- 
pendents, he  will  have  a  formidable  host  devoted  to  his  inter- 
ests, and  ready  to  support  his  ambitious  views It 

was  further  observed  that  the  only  appearance  of  responsibility 
in  the  President,  which  the  system  holds  out  to  our  view,  is 
the  provision  for  impeachment ;  but  that  when  we  reflect  that 
he  cannot  be  impeached  but  in  the  House  of  Representatives, 
and  that  the  members  of  this  house  are  rendered  dependent 
upon,  and  unduly  under  the  influence  of,  the  President,  by 
being  appointable  to  offices  of  which  he  has  the  sole  nomina- 
tion, so  that  without  his  favor  and  approbation  they  cannot 
obtain  them,  there  is  little  reason  to  believe  that  a  majority 
will  ever  concur  in  impeaching  the  President,  let  his  conduct 
be  ever  so  reprehensible ;  especially,  too,  as  the  final  event  of 
that  impeachment  will  depend  upon  a  different  body,  and  the 
members  of  the  House  of  Representatives  will  be  certain, 
should  the  decision  be  ultimately  in  favor  of  the  President,  to 
become  thereby  the  objects  of  his  displeasure,  and  to  bar  to 
.hemselves  every  avenue  to  the  emoluments  of  government. 
1  Elliott's  Debates,  Vol.  1,  p.  379. 


428  THE  POWER  OF  APPOINTMENT. 

Should  he,  contrary  to  probability,  be  impeached,  he  is  after- 
wards to  be  tried  and  adjudged  by  the  Senate,  and  without 
the  concurrence  of  two  thirds  of  the  members  who  shall  be 
present,  he  cannot  be  convicted.  This  Senate  being  consti- 
tuted a  privy  council  to  the  President,  it  is  probable  many  of 
its  leading  and  influential  members  may  have  advised  and  con- 
curred in  the  very  measures  for  which  he  may  be  impeached." 

In  a  letter  addressed  to  the  Legislature  of  Virginia,  Edmund 
Randolph  hoped  that  the  proposed  constitution  would  be 
amended  by  taking  from  the  President  "  the  power  of  nomin- 
ating te  the  judiciary  offices,  or  of  filling  up  the  vacancies 
which  may  happen  during  the  recess  of  the  Senate,  by  grant- 
ing commissions  which  shall  expire  at  the  end  of  the  next 
session."  * 

These  quotations  will  serve  to  illustrate  the  objections  of 
statesmen  to  the  proposed  constitution  ;  the  violent  and  absurd 
vituperations  of  mere  haranguers  like  Patrick  Henry,  need 
not  be  cited.  How  great  an  element  of  truth,  and  how  great 
of  error,  is  contained  in  these  critical  predictions,  each  student 
of  our  history  must  decide  for  himself. 

§  645.  To  these  arguments  the  friends  of  the  Constitution 
replied,  that  as  the  President  is  responsible  for  the  due  execu- 
tion of  the  laws,  he  should  choose  the  subordinate  agents  by 
whom  the  execution  was  to  be  in  fact  performed ;  that  in 
every  form  of  civil  society  some  confidence  must  be  placed  in 
human  nature  ;  that  many  of  the  objections  brought  forward 
would  equally  apply  to  every  kind  of  government ;  that  ex- 
perience has  shown  that  when  the  responsibility  of  appointment 
rests  upon  one  person  alone,  he  is  much  more  likely  to  be 
affected  by  the  weight  of  the  duty,  and  to  make  good  nomina- 
tions, than  where  the  responsibility  is  divided  among  several, 
so  that  no  one  can  feel  it  to  rest  wholly  upon  himself;  that 
the  chances  of  having  good  men  nominated  by  the  President, 
are,  therefore,  much  greater  than  would  be  were  the  officers 
to  be  chosen  by  Congress,  or  some  other  deliberative  body 
finally,  that  the  President  would  always  be  held  in  check,  fo* 
the  ratification  of  the  Senate  was  indispensable, 
i  Elliott's  Debates,  Vol.  1,  p.  491. 


THE  POWER   OF  APPOINTMENT.  429 

§  646.  I  shall  now  consider  the  nature  and  extent  of  the 
power  itself.  The  President  is  to  nominate,  and  with  the  ad- 
vice and  consent  of  the  Senate,  appoint  officers.  At  the  very 
outset  of  the  government,  an  attempt  was  made  by  a  few  per- 
sons to  give  such  a  construction  to  this  language  as  would 
make  the  Senate  the  body  to  take  the  initiative.  It  was  urged 
that,  as  the  Senate  was  to  advise  as  well  as  to  consent,  they 
could  only  advise  a  course  of  action  prior  to  that  action  ;  that 
we  consent  to  a  thing  after  we  know  it  is  attempted  to  be 
done,  but  we  advise  a  thing  prior  to  any  attempt ;  that  the 
only  way  possible  for  the  Senate  to  advise  as  well  as  to  con- 
sent to  the  appointment  of  officers,  was  for  them  to  suggest 
names  to  the  President,  from  which  he  might  choose  a  person 
whose  nomination  would  be  communicated  to  the  Senate, 
whereupon  that  body  would  proceed  to  indicate  its  consent  to 
that  particular  appointment  by  ratifying  it.  This  course  of 
argument,  though  plainly  having  some  grammatical  correct- 
ness, was  not  convincing.  It  was  evident  that  such  a  course 
would  virtually  make  the  Senate  the  sole  appointing  power  ; 
that  the  President  would  only  be  the  registrar  of  their  decrees. 
And,  besides,  the  nomination  of  a  person  is  not  his  appoint- 
ment ;  it  is  only  the  initial  step  towards  that  result.  The  ap- 
pointment takes  place  when  the  President  has  issued  the 
officer's  commission,  which  can  only  be  done  after  the  action 
of  the  Senate.  It  may,  therefore,  be  said  with  sufficient 
accuracy,  that  the  Senate  does  advise  the  appointment  as  well 
as  consent  to  it.  This  construction  has  been  established  by  an 
uniform  practice  ;  and  the  appointing  power  is  actually  exer- 
cised by  the  President  in  nominating  a  person  to  the  Senate, 
and  by  the  Senate  in  ratifying  or  rejecting  such  nomination. 

Still,  it  must  be  conceded  that,  as  the  practice  has  been  thus 
settled,  the  clause  of  the  Constitution  receives  no  greater  effi- 
cacy from  the  presence  of  the  word  advise ;  to  all  intents  and 
purposes  the  Senate  simply  consents  to  the  action  of  the  Presi- 
dent, and  to  the  appointment  he  makes.  Indeed,  the  President 
goes  elsewhere  for  advice.  But  the  real  power  of  the  Senate 
ttas  not  been  abridged  by  the  received  interpretation  put  upon 
the  organic  law.     When  there  has  been  a  difference  between 


430  THE   POWER   OF   REMOVAL. 

them  and  the  Executive,  they  have  not  been  slow  to  use  their 
prerogative,  and  to  use  it  successfully.  In  fact,  they  may 
perhaps,  be  able  to  go  beyond  the  function  specially  committed 
to  them,  and  may,  in  truth,  dictate  a  nomination  to  the  Presi- 
dent. 

§  647.  I  am  now  brought  to  the  important  question,  Can 
the  President  remove  from  office  ?  It  will  be  noticed  that  the 
Constitution  is  absolutely  silent  upon  this  subject.  Whatever 
power  of  removal  there  may  be,  must,  therefore,  be  implied  as 
a  reasonable  consequence  and  concomitant  of  some  other 
powers  expressly  granted.  That  officers  may  be  removed,  is 
conceded  on  all  hands  ;  by  whom  the  removal  is  to  be  made, 
under  the  Constitution,  is  a  question  not  yet  definitely  settled. 
There  are  only  three  possible  alternatives.  Either  the  Presi- 
dent may  remove,  upon  his  own  volition,  independent  of  the 
Senate,  or  of  Congress  ;  or  the  President,  by  and  with  the  ad- 
vice and  consent  of  the  Senate,  may  remove,  independent  of 
Congress  ;  or  the  Congress  has  complete  control  of  the  subject, 
and  may  establish  such  rules  respecting  removals  as  it  thinks 
proper.  If  the  authority  belongs  to  the  President,  it  is  in- 
ferred from  and  included  in  some  more  general  functions 
granted  to  the  Executive ;  if  the  President  and  the  Senate 
possess  the  power,  it  is  because  they  together  hold  the  power 
of  appointment.  In  either  case  this  special  prerogative  -would 
be  conferred  by  the  Constitution  as  absolutely  as  though 
expressed  in  positive  terms  ;  it  could  not  be  abridged  by  any 
legislation.  If  the  whole  subject  is  within  the  control  of  Con- 
gress, this  results  from  their  general  power  to  create  offices, 
and  to  pass  laws  necessary  and  proper  to  carry  into  execution 
the  attributes  and  functions  granted  to  other  departments.  No 
case  has  ever  yet  arisen  in  which  a  judicial  construction  was 
given  to  the  Constitution  in  this  respect.  Ex  parte  Hennen,1 
which  is  sometimes  referred  to,  simply  determined  the  author- 
ity of  a  district  judge  to  remove  the  clerk  of  the  district  court, 
under  a  statute  of  Congress  which  gave  to  the  judge  the  right 
to  appoint,  but  was  silent  in  reference  to  removal.  The  legis- 
ative  and  executive  construction  has,  however,  until  very 
1  13  Peters'  R.  230. 


THE   POWER   OE  APPOINTMENT.  431 

recently,  been  uniform  from  the  commencement  of  the  govern 
ment,  and  has  declared  in  favor  of  the  sole  authority  of  the 
President. 

§  648.  The  question  was  first  raised  and  discussed  in  Con- 
gress in  the  year  1789,  when  a  bill  for  establishing  an  execu- 
tive department,  to  be  called  the  Department  of  Foreign  Affairs, 
was  pending  before  the  House  of  Representatives.  The  first 
clause,  after  stating  the  title  of  the  officer,  and  recapitulating 
his  duties,  had  these  words,  "  to  be  removable  from  office  by 
the  President  of  the  United  States."  A  motion  was  made  to 
strike  out  this  clause,  and  the  discussion  turned  upon  the 
power  of  removal  under  the  Constitution.  It  seems  to  have 
been  conceded  that  the  power  resides,  either  absolutely  in  the 
President,  or  in  the  President  and  Senate  conjointly.  The 
supporters  of  the  motion  generally  advocated  the  latter  con- 
struction. They  urged  that  the  removal  from  office  was  a 
part  of  the  appointing  power  ;  that  as  the  power  to  appoint 
was  conferred  in  distinct  terms  upon  the  President,  by  and  with 
the  consent  of  the  Senate,  it  was  to  be  considered  by  necessary 
implication  that  the  power  to  remove  resided  in  the  same 
hands ;  that  under  the  Constitution  the  President  could  re- 
move with  the  consent  of  the  Senate,  and  that  any  attempt  by 
statute  to  confer  the  power  on  the  President  alone,  was  uncon- 
stitutional ;  that  to  clothe  the  President  with  this  power  was 
in  the  highest  degree  impolitic,  as  he  might  as  readily  use  it 
for  partisan  and  personal  ends,  as  for  the  public  good.  Many 
gentlemen  of  great  ability  and  influence  advocated  these 
views. 

§  649.  It  was  answered,  that  the  statute  would  not,  indeed, 
make  the  President's  power  any  greater  than  it  was  before,  but 
that  the  clause  in  question  was  eminently  proper  as  a  construc- 
tion put  upon  the  Constitution  by  the  legislature  ;  that  as  the 
executive  power  was,  in  general  terms,  vested  in  the  Presi- 
lent,  he  possesses  all  such  power  to  a  full  extent  except  where 
it  is  limited  in  the  same  instrument ;  that  the  appointment  and 
"emoval  of  officers  is  essentially  an  executive  act,  and  that,  had 
the  Constitution  been  entirely  silent  upon  the  subject,  the 
President  would  have  had  full  and  sole  power  to  make  all  ap- 


432  THE   POWER   OF  REMOVAL. 

pointments  :  that  his  authority  to  appoint  was  limited  in  ex- 
press terms,  but  his  authority  to  remove  was  not  limited  at  all, 
and  Congress  had  no  power  to  interpolate  a  limitation  upon 
the  genera]  executive  functions,  which  the  Constitution  does 
not  expressly,  or  by  any  necessary  implication,  contain.  To 
these  considerations  it  was  added,  that  without  the  power  to 
remove,  the  President  would  be  shorn  of  half  his  independent 
authority  ;  that  he  would  be  under  a  responsibility  for  the 
proper  execution  of  the  laws,  without  any  means  of  enforcing 
his  will  upon  officers  who  might,  perhaps,  be  incompetent  or 
untrustworthy.  In  short,  that  it  would  often  happen  that  an 
officer  should  be  removed  for  a  cause  not  sufficient  for  an  im- 
peachment, and  that  the  President  is  the  proper  person  to 
judge  of  the  nature  and  sufficiency  of  such  causes.  Mr.  Madi- 
son was  the  principal  champion  of  the  President's  absolute 
power,  and  his  arguments  and  influence  doubtless  carried  with 
him  a  majority  of  the  House.  In  answering  the  objection  that 
such  a  power  in  the  President  might  easily  become  dangerous, 
that  he  might  remove  officers  from  mere  partisan  and  personal 
ends,  he  said  :  "  The  danger,  then,  consists  merely  in  this,  — 
the  President  can  displace  from  office  a  man  whose  merits  re- 
quire that  he  should  be  continued  in  it.  What  will  be  the 
motives  which  the  President  can  feel  for  such  an  abuse  of  his 
power,  and  the  restraints  that  operate  to  prevent  it  ?  In  the 
first  place  he  will  be  impeachable  by  this  house,  before  the 
Senate,  for  such  an  act  of  maladministration  ;  for  I  contend 
that  the  wanton  removal  of  meritorious  officers  would  subject 
him  to  impeachment  and  removal  from  his  own  high  trust." 
The  motion  to  strike  out  the  clause  was  rejected  by  a  vote  of 
thirty-four  to  twenty.1 

§  650.  The  grounds  thus  assumed  by  a  majority  of  the 
House,  at  the  very  commencement  of  our  present  Union,  have 
been  assented  to  by  every  administration  since,  and  have  fur- 
nished a  rule  for  the  guidance  of  every  President,  of  whatever 
school  of  political  opinion,  from  Washington  to  the  present 
Executive.  The  only  difference  between  these  Chief  Magis- 
trates has  been  in  respect  to  the  causes  which  they  have 
i  Elliott's  Debates,  Vol.  1,  pp.  350-404. 


THE   POWER   OF  APPOINTMENT.  433 

deemed  sufficient  to  warrant  a  removal ;  whether  they  have 
required  causes  personal  with  the  officer,  affecting  his  integrity 
or  his  capacity,  or  whether  they  have  relied  on  causes  that 
were  only  partisan  and  political.  It  must  be  admitted  that,  in 
the  progress  of  time,  the  kinds  of  removal  which  the  opponents 
of  the  President's  power  described  as  so  dangerous,  and  which 
Mr.  Madison  declared  would  be  sufficient  ground  for  impeach- 
ment, have  become  by  far  the  most  common  ;  and  that  the 
power  is  now  claimed  on  the  one  hand,  and  denied  on  the 
other,  chiefly  for  the  opportunity  which  it  gives  to  punish 
political  opponents  and  reward  political  friends. 

§  651.  Let  us  briefly  examine  these  two  theories  of  con- 
struction, and  the  arguments  which  support  them.  One  gives 
the  function  to  the  President,  the  other  to  the  President  and 
Senate  ;  both  deny  that  Congress  may  pass  any  law  restrain- 
ing the  capacity.  Neither  claims  to  find  the  authority  in  any 
express  grants  of  the  Constitution.  Each  infers  the  authority 
from  other  grants  in  that  instrument;  and  its  advocates  at- 
tempt to  strengthen  their  position  by  describing  the  superior 
advantages  and  greater  conveniences  which  would  result,  or 
do  result,  from  their  interpretation,  and  the  corresponding 
dangers  and  evils  which  would  result,  or  do  result,  from  the 
other  interpretation.  While  the  reasoning  is  of  this  character, 
it  can  hardly  be  said  that  the  arguments  on  either  side  are  ab- 
solutely convincing.  Still,  as  between  these  two  theories,  I 
am  of  opinion  that  the  one  which  has  received  the  sanction  of 
long  practice,  is  supported  by  considerations  of  the  greater 
weight. 

§  652.  It  would  seem  to  be  plain  that,  as  the  President  is 
charged  with  the  duty  to  "  take  care  that  the  laws  be  faith- 
fully executed,"  he  should  be  able  to  remove  any  officer  for  a 
good  cause  affecting  that  officer  personally,  for  incapacity  to 
perform  his  duties,  neglect  in  the  performance,  breach  of  trust, 
or  for  any  other  maladministration.  But  where  so  much  is 
conceded,  there  does  not  seem  to  be  any  limit  to  the  power  of 
the  President  to  remove.  The  Constitution  is  silent ;  it  makes 
fio  distinction  between  removing  for  good  cause,  and  for  baa 
tause,  and  for  no  cause.  The  President's  authority  to  remove 
28 


434  THE  POWER  OF   REMOVAL. 

at  all  is  inferred  from  the  nature  of  removal  in  itself,  not  from 
the  nature  of  the  cause  or  occasion  upon  which  the  power  may 
be  exercised.  To  be  sure  the  nature  of  the  cause  of  removal 
has  often  been  appealed  to  as  illustrative  of  the  expediency,  or 
even  necessity,  that  this  function  should  be  confided  to  the 
President  ;  but  a  removal,  because  the  President  so  wished,  ia 
just  as  much  an  executive  act,  as  a  removal  because  the  officer 
was  thoroughly  incompetent  or  utterly  dishonest.  This  argu- 
ment is  strengthened  by  another  consideration.  There  are 
some  officers,  and  those  generally  of  the  very  highest  impor- 
tance, whose  relations  to  the  President  are  such,  that  his 
power  over  them  should  plainly  be  absolute.  They  are  his 
personal  agents,  perhaps  his  advisers,  but  certainly  his  imme- 
diate organs,  by  which  he  accomplishes  most  of  his  official  acts 
in  respect  to  matters  in  which  he  has  the  largest  discretion. 
These  are  the  heads  of  departments,  and  though,  perhaps,  to  a 
less  extent,  foreign  ministers.  The  President  should  be  able 
to  remove  a  head  of  either  department  without  any  regard  to 
that  person's  capacity  or  integrity,  and  for  no  other  cause  than 
his  own  wish.  So  true  is  this,  that  the  Senate  has  long 
adopted  a  practice  to  confirm  the  appointments  made  by  a 
President  to  his  cabinet,  although  the  persons  appointed  may 
have  been  distasteful  to  the  Senators.  But  there  is  certainly 
no  constitutional  power  to  remove  this  class  of  officers  at  pleas- 
ure, which  does  not  equally  apply  to  all  other  classes.  To 
sum  up  :  The  interpretation  of  the  Constitution  which  gives 
the  authority  in  question  to  the  President  and  Senate  is  finally 
based  upon  the  notion  that  appointing  and  removing  are  cor- 
relative in  their  nature,  and  the  person  or  persons  who  appoint 
must  necessarily  be  charged  with  the  power  to  remove.  The 
interpretation  which  gives  the  authority  to  the  President  is 
finally  based  upon  the  notion  that  removal  is  an  executive  act, 
and  that  the  unlimited  power  in  him  is  necessary  in  order  that 
he  may  "  take  care  that  the  laws  be  faithfully  executed." 
The  latter  considerations  seem  to  be  the  more  weighty  of  the 
two. 

§  653.  But  there  is  a  third  alternative.     It  may  be  assumed 
that  the  Constitution  has  left  the  whole  subject  in  doubt ;  thai 


THE   POWER   OF   APPOINTMENT.  43.:> 

an  interpretation  which  should  give  the  absolute  power  of  re- 
moval either  to  the  President,  or  to  the  President  and  Senate, 
would  be  overstrained  ;  that  neither  of  the  theories  already 
considered  can  be  supported  by  any  just  construction  of  the 
organic  law.  Then  the  whole  matter  is  left  under  the  control 
of  Congress.  That  body  may  create  offices,  and  must  create 
all  to  which  the  power  of  appointment  applies.  As  an  inci- 
dent to  the  power  of  creation,  the  authority  to  fix  the  terms 
of  office  plainly  exists,  except  in  those  very  few  instances  where 
the  Constitution  has  spoken.  In  thus  prescribing  the  duration 
of  an  official  term,  Congress  may  either  place  a  definite  limit 
of  time,  or  may  make  that  limit  uncertain,  conditional,  depend- 
ing upon  the  action  of  some  other  person  or  persons  authorized 
to  act.  Thus  the  legislature  may  regulate  the  duration  of 
office,  and  therein  the  power  of  removal,  and  may  confer  that 
power  upon  the  President  alone,  or  upon  the  President  and 
the  Senate  conjointly.  In  this  manner  some  officers  may  be 
placed  by  law  under  the  complete  control  of  the  Chief  Magis- 
trate ;  others  may  be  left  to  the  disposition  of  the  dual  appoint- 
ing power.  It  may  be  that  this  theory  will  be  accepted,  and 
become  the  practical  guide  in  the  administration  of  public 
affairs. 

§  654.  But  another  question  has  arisen,  which  is  sometimes 
regarded  as  wholly  independent  of  the  one  just  discussed.  It 
involves  the  extent  ot  the  President's  power  under  the  follow- 
ing clause  :  "  The  President  shall  have  power  to  fill  up  all 
vacancies  that  may  happen  during  the  recess  of  the  Senate, 
by  granting  commissions  which  shall  expire  at  the  end  of  their 
next  session."  The  question  is  whether  the  President  may, 
during  the  recess,  create  a  vacancy  by  the  removal  of  an  in- 
cumbent, and  then  proceed  to  fill  that  vacancy  by  appointing 
a  successor  whose  commission  is  to  last  until  the  close  of  the 
next  session  of  the  Senate.  In  other  words,  the  question  is 
not  so  much  that  of  removal,  as  that  of  appointment.  So  far 
as  the  practice  of  various  administrations  has  gone,  it  has  re- 
cognized the  existence  of  the  power.  It  is  evident  also,  that 
3nce  admit  this  construction  of  the  Constitution  to  be  correct, 
the  check  upon  the  President  heid  by  the  Senate  will  be  in  a 


436  THE   POWER   TO   FILL   VACANCIES. 

great  measure  destroyed.  If  he  finds  that  the  Senate  arc 
opposed  to  him  in  the  matter  of  appointments,  and  that  it  is 

morally  certain  his  nominations  will  be  rejected,  he  may  wait 
until  the  adjournment  of  that  body,  and  then  make  removals 
and  fill  the  consequent  vacancies.  The  persons  commissioned 
would  be  certain  to  hold  their  offices  to  the  close  of  the  suc- 
ceeding session. 

§  Q5o.  Still,  if  we  grant  the  general  power  of  the  President 
to  make  removals,  I  see  no  escape  from  the  construction  which 
has  heretofore  been  adopted  in  practice.  The  power  to  fill 
vacancies  during  the  recess,  by  appointments  which  shall  last 
to  the  close  of  the  next  session,  extends,  by  the  express  terms 
of  the  Constitution,  only  to  those  which  happen  during  a  re« 
cess.  All  which  happen  during  a  session,  must  be  filled  during 
the  session,  or  they  cannot  be  filled  at  all,  and  the  nomination 
must  be  confirmed  by  the  Senate.  If  language  can  express 
any  thought,  it  is  clear  that  a  vacancy  must  not  have  com- 
menced during  a  session  and  have  extended  into  the  recess, 
but  must  have  commenced  during  the  recess.  There  is,  there- 
fore, a  plain  check  upon  removals  by  the  President  during  a 
session,  for  he  cannot  fill  vacancies  thus  created,  without  con- 
sulting the  Senate. 

§  656.  The  objections  to  the  power  of  the  President  to  fill 
such  vacancies  as  he  has  himself  caused  during  a  recess  by 
removal  of  a  former  incumbent,  are  based  upon  two  positions ; 
first,  that  he  has  no  power  to  remove  at  all  ;  secondly,  that 
granting  his  power  to  remove,  he  can  only  fill  such  vacancies 
as  "  happen  "  during  a  recess.  It  has  been  urged  that  the 
word  "  happen  "  necessarily  implies  something  accidental, 
some  casualty  ;  that  it  is  not  synonymous  with  the  word  "  oc- 
cur "  ;  that  the  President  has  not  power,  therefore,  to  fill  all 
vacancies  which  may  occur  during  a  recess,  but  only  such  as 
are  really  accidental,  or  fortuitous,  such  as  those  caused  by 
death,  or  resignation,  and  the  like,  which  are  causes  entirely 
beyond  the  control  of  the  President.  It  is  urged  that  a  va- 
cancy cannot,  with  any  propriety,  be  said  to  "happen."  which 
was  created  by  the  deliberate  act  of  the  President.  This 
argument  is  strengthened  by  the  consideration  already  alluded 


THE   POWER   OF  APPOINTMENT.  437 

to,  that  the  contrary  construction  would  partially  enable  the 
Chief  Magistrate  to  dispense  with  the  Senate,  and  to  nullify  a 
most  important  constitutional  check. 

§  657.  The  objection  to  this  method  of  reasoning  is,  that  ir 
is  too  refined,  too  etymological.  The  organic  law  should  not 
be  interpreted  in  this  grammatical  manner.  Again,  it  is  con- 
ceded that  the  President  must  remove  during  a  recess,  for  a 
cause  affecting  the  officer's  capacity  or  integrity,  and  that  a 
vacancy  thus  created  must  be  filled.  In  conceding  so  much, 
the  whole  case  is  given  up.  The  breach  of  trust,  the  neglect 
of  duty  may  be  considered  sufficiently  fortuitous,  so  that  the 
term  "  happen  "  can  properly  be  applied  to  them.  But  these 
facts  do  not  create  the  vacancy ;  that  vacancy  as  much  results 
from  the  deliberate,  intentional  act  of  the  President,  as  though 
he  removed  a  most  able  and  faithful  officer  on  purely  partisan 
grounds.  The  Constitution  does  not  recognize  any  ulterior 
causes  of  the  vacancies  ;  they  must  "  happen  "  ;  and  if  a 
vacancy  happens  from  the  removal  of  an  incumbent  for  any 
ground,  the  same  must  be  true  of  a  removal  for  all  grounds. 
In  conclusion,  it  appears  evident  that,  the  President's  general 
power  to  make  removals  being  admitted,  his  other  power  to 
fill  all  vacancies  caused  by  such  removals  during  a  recess,  can- 
not be  successfully  opposed.  Those  who  would  deny  the  latter 
authority  must  go  to  the  bottom  of  the  whole  matter,  and  con- 
test the  power  to  remove  at  all. 

§  658.  I  cannot  leave  this  branch  of  the  executive  functions 
without  a  few  remarks  which  do  not  strictly  belong  to  consti- 
tutional law,  but  relate  rather  to  administrative  policy.  Most 
of  the  objections  brought  forward  by  the  original  opponents  of 
the  Constitution,  have  proved  to  be  utterly  without  foundation, 
or  else  have  been  recognized  as  benefits.  The  fears  expressed 
in  regard  to  the  appointing  power  of  the  President  have  been 
more  than  realized  ;  not,  perhaps,  in  the  exact  direction  appre- 
hended, but  in  another  and  far  worse  direction.  Congress  and 
the  courts  have  not  been  corrupted  ;  but  the  attempt  has  been 
made,  during  a  large  portion  of  our  political  history,  and  with 
in  alarming  success,  to  corrupt  the  electors  themselves,  tne 
people,  as  the  source  of  all  power.      Appointment  to  ornce  has 


lo8  IMPROPER    EXERCISE   OF   THIS    POWER. 

i-ome  to  be  universally  regarded  as  the  reward  due  for  mere 
partisan  services,  removal  from  office  as  the  penalty  justly  in- 
curred by  a  partisan  opposition.  This  method  of  administering 
public  affairs  prevails  throughout  the  nation  and  the  states. 
No  one  thing  has  done  so  much  to  debauch  the  politics  of  this 
country;  to  drive  good  men  from  the  active  management  of 
parties;  to  create  the  mercenary,  trading,  professional  politi- 
cian, and  to  throw  the  entire  control  of  the  political  machinery 
into  his  hands.  Whatever  good  Jefferson  may  have  done  to 
the  cause  of  liberty  and  free  government,  he  more  than  neu- 
tralized by  the  example  he  set  of  making  removals  and  appoint- 
ments as  mere  punishments  and  rewards  for  party  opposition 
and  support.  This  example  has  found  ready  imitators.  Jack- 
son enlarged  its  scope  and  operation,  and  every  President  has 
continued  the  demoralizing  practice.  I  need  not  describe  the 
iniquitous  results,  they  are  known  to  all.  Passing  by  the 
necessary  consequence  that  the  public  business  is  negligently 
and  dishonestly  performed,  the  evil  influences  upon  the  people 
themselves  are  far  more  destructive.  The  discharge  of  official 
duties  in  a  manner  most  advantageous  to  the  nation,  is  a  sec- 
ondary matter.  The  office  holder  sees  that  the  administration 
of  the  ministerial  functions  committed  to  him,  is  a  thing  of  no 
comparative  importance  ;  in  fact,  the  most  perfect  administra- 
tion will  not  secure  him  in  his  position.  Above  these  minis- 
terial functions,  which  in  theory  he  is  appointed  to  perform, 
stands  the  higher  and  more  responsible  one  of  managing  party 
concerns,  of  packing  conventions,  of  procuring  nominations,  of 
marshalling  voters,  of  constructing  platforms,  of  manufacturing 
a  public  opinion.  In  short  the  office  holders  throughout  the 
country  have  become  a  vast  organization,  a  most  efficient  in- 
strument for  promoting  party  measures  and  success. 

§  659.  I  am  confident  that  this  evil  cannot  be  remedied  until 
ve  return  to  the  methods  of  Washington  and  the  elder  Adams  , 
until  we  accept  as  a  practical  guide,  the  declaration  of  Madi- 
son, that  the  appointment  of  an  unfit  person,  or  the  wanton  re- 
moval of  a  meritorious  one,  is  an  impeachable  offence.  Some 
officers,  the  persona!  advisers  of  the  President,  those  who  di- 
rectly represent  and  act  for  him,  whose  functions,  like  his  own, 


THE   POWER   OF  APPOINTMENT.  439 

are  discretionary,  should  of  course  be  changed  with  each  Chief 
Magistrate,  But  the  great  mass  of  ministerial  officers,  whose 
duties  are  not  political,  should  be  allowed  to  hold  during  good 
behavior,  or  at  least,  should  not  be  subject  to  removal  by 
every  incoming  administration. 

§  660.  The  present  system  is  certainly  not  absolutely  essen- 
tial to  a  free  country  and  electoral  institutions.  The  elections 
in  England  are  contested  with  at  least  as  much  vigor  and  in- 
terest  as  those  with  us  ;  party  spirit  runs  as  high  ;  disturbances 
are  much  more  common  ;  the  sums  expended  by  candidates 
are  vastly  larger  than  any  similar  expenditures  in  this  country. 
Yet  no  government,  whatever  be  its  opinions  and  its  policy, 
would  for  a  moment  think  of  displacing  the  office  holders  which 
it  found  in  service.  The  members  of  the  Cabinet,  those  who 
are  directly  responsible  for  all  legislative  and  executive  meas- 
sures,  are  of  course  changed,  but  the  subordinates  of  every 
grade  hold  during  good  behavior.  We  are  accustomed  to 
reproach  the  English  politics  with  the  extent  of  its  corruption  ; 
we  point  to  the  open  and  almost  universal  bribery  of  electors; 
we  comment  upon  the  immense  sums  paid'out  by  candidates ; 
we  contrast  all  this  with  our  own  comparative  freedom  from 
such  practices.  I  believe,  however,  that  the  American  mode 
of  corruption  is  infinitely  worse  than  the  British,  as  it  directly 
tends  to  destroy  all  independence  of  thought  and  opinion.  The 
persistent  attempt  to  change  the  convictions  of  the  people,  not 
by  an  appeal  to  their  better  judgments,  but  by  the  tremendous 
pressure  exerted  through  an  organized  band  of  office  holders, 
appears  to  be  far  more  immoral  than  the  system  of  direct  pecu 
niary  bribery. 

§  661.  It  may  be  asked  whether  there  is  any  remedy  for  the 
evil.  No  mere  alteration  in  the  interpretation  put  upon  the 
Constitution,  no  mere  legislation  of  Congress  will  work  a  cure. 
The  disease  lies  deeper,  and  will  surely  appear  whatever  be 
-he  form  of  the  law.  President  and  Senate  can  as  easily  ap- 
point and  remove  for  partisan  purpose?  as  the  President  alone. 
The  remedy  must  be  found  in  the  people.  Public  opinion 
must  be  awakened  ;  and  when  this  mighty  power  is  aroused, 
und  is  acting  in    the  true  direction,  its  effects  will  be  seen  at 


140  THE   POWER   TO   EXECUTE   THE   LAWS. 

once  among  office  holders  and  office  seekers,  among  Presidents 
and  Legislatures.  When  the  convictions  of  the  nation  are 
completely  changed,  the  evil  will  have  disappeared. 

In  March,  1867,  Congress  passed  a  statute  which  distinctly 
repudiated  the  construction  which  has  heretofore  been  given 
to  the  Constitution.  This  act  emphatically  denies  the  Presi- 
dent's power  to  remove  from  office  ;  whether  it  asserts  that  the 
power  resides  in  the  President  and  Senate  by  the  terms  of  the 
organic  law,  or  whether  it  claims  that  Congress  has  complete 
control  of  the  subject,  does  not  distinctly  appear.  The  im- 
portant sections  are  three.  The  first  declares  in  substance 
that  no  removal  made  by  the  President  shall  be  valid  unless 
consented  to  by  the  Senate,  and  this  provision  is  extended  to 
the  heads  of  departments.  The  second  recognizes  the  neces- 
sity of  removals  for  good  cause  during  a  recess,  but  only  per- 
mits the  President  to  suspend  the  officer  in  such  case,  until 
the  next  session  of  the  Senate,  who  shall  then  pass  upon  the 
propriety  of  the  suspension.  The  third  section  limits  the 
power  of  the  President  to  fill  vacancies  which  happen  during 
a  recess,  by  restricting  his  authority  to  those  caused  by  death 
or  by  resignation.  Of  the  validity  of  this  statute  I  do  not  pur- 
pose to  speak ;  the  preceding  discussion  will  indicate  the  ques- 
tions which  may  arise  concerning  it. 


SECTION    III. 

THE  POWER  AND  DUTY  OF  THE  PRESIDENT  TO  TAKE  CARE  THAT 
THE  LAWS  BE  FAITHFULLY  EXECUTED. 

§  662.  I  need  not  repeat  the  observations  made  in  Section  I. 
The  Constitution  vests  in  the  President  the  sole  executive 
power ;  it  authorizes  and  requires  him  to  take  care  that  the 
laws  are  faithfully  executed.  His  duties  consist,  as  we  have 
seen,  partly  in  executing  the  provisions  of  the  Constitution, 
n  which  he  is  independent  of  legislative  control;  and  partly 
n  taking  care  that  the  laws  passed  under  and  by  virtue  of  the 
Constitution  are  executed.  In  exercising  the  latter  function  a 
greater  or  less  degree  of  discretion  may  be  left  to  him  by  the 


THE  POWER  TO  EXECUTE  THE  LAWS.      441 

legislative  act.  These  degrees  may  be  arranged  as  follows : 
The  statute  may  intrust  to  him  the  whole  execution,  so  that 
whatever  is  clone  must  issue  from  him  not  only  in  theory,  but 
in  fact ;  or  the  statute  may  authorize  the  creation  of  new 
offices,  leave  the  appointment  of  the  officers  to  the  President, 
and  prescribe  the  exact  duties  which  they,  when  appointed, 
are  to  undertake  and  perform  ;  or  the  statute  may  create  new 
duties,  prescribe  their  methods  of  performance,  and  intrust 
their  execution  to  officers  already  in  existence,  who  were  ap- 
pointed for  some  other  or  different  purposes.  In  the  first  case 
the  President  has  the  whole  power  of  execution  in  his  own 
hands  ;  in  the  second  case  he  must  take  the  initiative  by  ap- 
pointing the  officers,  who,  when  appointed,  have  the  whole 
power  of  execution  in  their  own  hands  ;  in  the  third  case  he 
has  no  function  whatever  except  that  of  taking  care  that  the 
laws  are  faithfully  executed. 

§  663.  We  are  met,  however,  by  the  question,  Whether  in 
those  forms  of  legislative  enactment  in  which  the  President  is 
clothed  with  a  discretion,  in  which  he  is  charged  with  the 
duty  of  taking  the  initiative,  in  which  he  is  required,  not  only 
to  take  care  that  the  laws  be  faithfully  executed,  but  to  exe- 
cute them  in  whole  or  in  part,  —  whether  in  these  cases  he 
may  determine  for  himself  what  are  the  laws  ;  whether  he 
may  refuse  to  execute  a  certain  statute  or  a  certain  decree  of 
the  national  courts,  on  the  ground  that,  while  having  the  out- 
ward form  of  law,  the  statute  or  decree  is  not  in  fact  law,  but 
is  void.  Were  our  government  modelled  exactly  after  that  of 
Great  Britain,  this  question  could  not  arise  ;  whatever  Parlia- 
ment may  ordain,  must  have  the  compulsive  efficacy  of  law. 
But  our  written  national  Constitution,  lying  back  of  all  de- 
partments of  the  government,  creating  them  and  defining  their 
functions,  renders  it  possible  for  any  or  all  of  them  to  exceed 
their  legitimate  powers  ;  such  excess  will  be  absolutely  void  ; 
the  statute  directing  it  will  be  no  law,  however  formal  and 
*egular  its  manner  of  enactment  may  have  been.  May  the 
President  judge  of  this  character,  and  refuse  to  execute  all  laws 
which  he  deems  unconstitutional  and  void  ? 

§  664.    I  have  already  discussed  this  question  in  its  more 


442      THE  POWEB  TO  EXECUTE  THE  LAWS. 

general  statement  in  Part  Second,  and  shall  not  here  repeat 
the  arguments  and  authorities  therein  relied  upon.  I  shall 
only  add  some  reasons  peculiar  to  the  President.  The  Chief 
Magistrate  has  the  express  power  of  objecting  to  a  proposed 
statute  by  means  of  his  veto.  Armed  with  this  weapon,  he 
may  oppose  the  passage  of  any  act  which  he  deems  unconstitu- 
tional or  even  inexpedient.  In  most  cases  his  objections  will 
have  power  to  defeat  the  measure  ;  but  he  may  be  overruled 
by  a  vote  of  two  thirds  of  the  Congress.  When  this  is  done1, 
or  when  the  statute  receives  bis  assent,  it  certainly  has  the 
form  of  law,  and  the  presumption  must  unquestionably  be  that 
it  is  valid.  No  one  would  contend  that  the  President  may 
now  refuse  to  execute  this  statute  on  the  ground  that,  in  his 
opinion,  it  is  inexpedient  or  impolitic.  This  would  be  to  give 
him  the  dispensing  power  which  was  so  long  claimed  by  the 
British  crown,  and  so  vigorously  resisted  by  the  English  peo- 
ple. The  legislative  function  is  given  to  Congress  ;  and  if  the 
statute  be  within  the  grants  of  the  Constitution,  and  be  passed 
according  to  the  forms  required  by  that  Constitution,  the 
President,  aside  from  his  power  to  accord  or  withhold  his  con- 
sent, has  no  responsibility  for  or  control  over  its  mere  policy 
or  expediency.  Every  writer  on  the  public  law,  and  every 
practical  statesman,  will  concede  the  correctness  of  this 
position.  , 

§  665.  But  the  conclusion  thus  reached  is  entirely  inde- 
pendent of  the  further  inquiry  whether  the  President  may  still 
judge  of  the  validity  of  the  law  on  constitutional  grounds. 
As  a  general  rule,  applicable  in  a  great  majority  of  cases,  he 
cannot  thus  exercise  an  independent  judgment.  This  opinion 
has  been  maintained  by  most  American  publicists  and  states- 
men, although  its  correctness  has  been  denied  by  political 
writers  of  no  small  reputation  and  ability.  The  arguments  of 
those  who  assert  the  President's  absolute  power  to  pronounce 
upon  the  validity  of  a  law,  are  based  on  two  provisions  of  the 
Constitution.  He  is  to  take  care  that  the  laws  are  faithfully 
executed.  It  is  said  that  he  must  only  execute  the  laivs,  and 
not  those  legislative  acts  which  have  a  legal  semblance  merely 
but  are  void.     An  unconstitutional  statute  is  no  more  a  law 


THE   POWER   TO   EXECUTE  THE   LAWS.  413 

than  though  it  had  never  been  passed,  and  the  President  has 
no  power  whatever  to  execute  this  nullity.  Again  :  the 
President  is  compelled  to  take  the  following  oath  :  "  I  do  sol- 
emnly swear  that  I  will  faithfully  execute  the  office  of  Pres- 
ident of  the  United  States,  and  will,  to  the  best  of  my  ability, 
preserve,  protect,  and  defend  the  Constitution  of  the  United 
States."  It  is  said  this  oath  imposes  on  the  President  a  per- 
sonal and  peculiar  responsibility  ;  that  he  is  to  be  guided  by 
his  own  judgment,  by  his  own  conviction  of  what  is  lawful, 
and  not  by  the  judgments  and  convictions  of  any  other  per- 
sons. 

§  666.  These  arguments,  though  not  without  a  certain  de- 
gree of  plausibility,  are  of  little  weight.  They  either  prove 
too  much,  or  they  beg  the  whole  question.  The  senators  and 
representatives,  the  members  of  state  legislatures,  and  all  ex- 
ecutive and  judicial  officers  of  the  states  and  of  the  nation, 
are  also  required  to  take  an  oath  to  support  the  Constitution. 
The  President's  oath  is  but  an  amplification  of  this  ;  it  enters 
into  more  detail,  but  does  not  add  another  compulsive  clause. 
The  solemn  promise  in  particulars  "  to  preserve,  protect  and 
defend  the  Constitution,"  does  not  imply  more  than  the 
equally  solemn  promise  in  generals  "  to  support "  it.  The 
former  is  no  more  binding  upon  the  President's  conscience, 
than  is  the  latter  upon  that  of  every  ministerial,  legislative, 
and  judicial  officer  :  the  sanction  of  the  former  does  not  more 
rigidly  restrain  the  President  in  the  discharge  of  his  high  pub- 
lic duties,  than  does  the  sanction  of  the  latter  hold  all  other 
officers  to  a  strict  accountability  in  the  performance  of  their 
special  functions.  If  the  President,  therefore,  receives  from 
the  terms  of  his  oath  a  power  to  judge  independently  as  to  the 
validity  of  a  statute,  to  the  same  extent  and  for  the  same 
reason,  every  legislative,  executive,  and  judicial  officer  of  the 
states  and  of  the  nation,  acquires  the  same  power  to  construe 
&nd  interpret  the  organic  law  for  himself.  Indeed  the  in- 
stances have  not  been  wanting  where  subordinate  officials  have 
asserted  their  claim  to  this  authority.  Should  such  a  practice 
oecome  general,  anarchy  would  immediately  take  the  place  of 
*  well  ordered  government. 


144       THE  POWER  TO  EXECUTE  THE  LAWS. 

9  667.  When  it  is  said  that  the  President  is  only  bound  to 
execute  the  laws,  and  not  void  statutes,  and  that  he  must 
therefore  decide  for  himself,  and  refuse.'  to  enforce  those  enact- 
ments which  he  deems  to  be  unconstitutional,  this  is  assuming 
the  very  point  in  dispute.  The  question  really  is,  are  the 
laws  in  controversy  valid  or  void  ;  and  giving  him  the  power 
to  decide  this  question  is  to  make  him  the  sole  dispenser  of 
statutes;  it  is  to  introduce  immediate  confusion  into  the  whole 
machinery  of  government ;  it  is  to  set  the  Executive  against 
the  Legislature,  or  against  the  Judiciary.  Of  course,  if  the 
law  is  void,  it  is  not  to  be  executed  ;  this  is  conceded.  But 
who  is  to  determine  this  question  ?  It  can  only  be  the  Ju- 
diciary ;  and  their  decision,  as  long  as  it  stands  unreversed,  is 
final  and  compulsive  upon  the  President.  The  statute  having 
passed  through  the  prescribed  forms  of  legislation,  is  to  be 
taken  as  presumptively  valid  ;  it  certainly  carries  with  it  the 
prima  facie  character  of  legality,  and  until  declared  a  nullity 
by  the  proper  courts,  should  be  treated  as  binding,  and  should 
be  faithfully  executed.  In  fact,  there  are  many  legislative 
enactments  where  the  President  must  take  the  initiative,  and 
commence  to  execute,  or  they  will  remain  a  dead  letter  ;  he 
must  move,  or  no  one  else  can,  and  thus  no  opportunity  can 
arise  for  a  judicial  decision  upon  their  validity.  If  the  Presi- 
dent may  determine  for  himself,  and  refuse  to  execute,  his 
action  Avould  be  final ;  no  person  affected  by  such  statutes 
could  establish  any  rights  thereunder.  Another  large  class 
of  laws,  however,  can  be  set  in  motion  by  private  persons  or 
subordinate  officers,  and  thus  their  legality  may  be  presented 
to  the  judicial  tribunals  for  discussion  and  judgment. 

§  6G8.  To  the  general  rule  stated  in  the  foregoing  para- 
graphs, there  are,  I  think,  two  important  exceptions.  A 
statute  may  be  passed  of  such  a  form  and  character  as  to  be 
addressed  directly  to  the  President ;  it  assumes  to  regulate  his 
official  action  ;  no  private  person  and  no  subordinate  officer  is 
affected  by  its  provisions.  If  the  Chief  Magistrate  enforces 
this  law,  no  question  as  to  its  validity  can  be  raised,  no  oppor- 
tunity can  be  given  to  deny  the  power  of  the  legislature.  It 
is  on'y  by  a  refusal  to  execute  such  a  statute  that  the  Presi- 


THE   POWER   OVER  FOREIGN   RELATIONS.  445 

dent  can  possibl}  create  an  issue  between  himself  and  Con- 
gress ;  so  long  as  lie  continues  to  carry  out  its  mandates,  it 
must  be  taken  as  legal.  In  such  a  case  the  President,  unless 
he  chooses  to  acquiesce,  may  plainly  exercise  an  independent 
judgment,  and  act  upon  his  own  separate  convictions.  To 
illustrate  :  So  long  as  the  Executive  obeys  the  recent  act  of 
Congress  in  relation  to  removals  from  office,  and  appointments 
thereto,  the  statute  must  be  taken  as  valid  ;  no  officer  removed 
or  appointed  can  complain,  for  his  rights  have  not  been  im- 
paired. The  law,  therefore,  must  stand  unquestioned,  unless 
the  President  should  disregard  its  commands  and  proceed  to 
remove  from  office  without  consulting  the  Senate. 

Again :  it  is  possible  to  conceive  the  case  that  Congress 
should  pass  a  statute  which  was  plainly  opposed  to  the  very 
letter  of  the  Constitution ;  concerning  which  there  could  be  no 
doubt  or  difference  of  opinion  ;  which  was,  in  fact,  an  act  of 
palpable  usurpation.  Should  the  legislature  ever  attempt  to 
transgress  their  authority  in  this  manner,  the  general  rule 
which  I  have  stated  as  a  guide  to  the  Chief  Magistrate,  could 
not  apply.  Under  such  exceptional  circumstances,  should  they 
ever  arise,  he  must  interpose  his  prerogative  ;  he  must  "  pre- 
serve, protect,  and  defend  the  Constitution." 


SECTION  IY. 

THE     POWER     OF     THE     PRESIDENT    TO     MANAGE     THE     FOREIGN     AND 
INTERNATIONAL   RELATIONS    OF    THE    UNITED    STATES. 

§  669.  This  general  power  is  contained  in  the  following 
special  grants  :  "  He  shall  receive  ambassadors  and  other  pub- 
lic ministers "  accredited  from  foreign  governments.  "  He 
shall  nominate,  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint  ambassadors,  other  public  ministers,  and  consuls." 
'*  He  shall  have  the  power,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  make  treaties,  provided  twro  thirds  of  the 
Senators  present  concur."  "  All  treaties  made,  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall  be 
/he  supreme  law  of  the  land  ;  and  the  judges  in  every  state 


446  THE   POWER   TO   NEGOTIATE. 

shall  be  bound  thereby,  any  thing  in  the  constitution  or  laws 
of  any  state  to  the  contrary  notwithstanding." 

All  foreign  relations  are  thus  confided  exclusively  to  the 
President,  or  to  him  in  connection  with  the  Senate.  Congress 
as  such  has  no  voice  in,  or  control  over,  these  matters,  except 
the  secondary  power  or  duty  of  passing  laws  in  certain  in- 
stances to  carry  out  the  provisions  of  treaties. 

§  670.  Of  the  unlimited  extent  and  transcendent  importance 
of  this  function  thus  confided  to  the  Executive,  either  alone  or 
in  connection  with  the  Senate,  there  can  be  no  doubt.  When 
we  reflect  on  the  results  for  good  or  evil,  flowing  from  the 
condition  of  international  relations,  results  which  must  be  felt 
by  the  nation  in  all  their  internal  affairs,  we  can  judge  of  the 
responsibility  which  rests  upon  the  Chief  Magistrate  personally, 
by  virtue  of  these  powers. 

The  function,  as  a  whole,  is  divided  into  two  distinct 
branches:  the  power  of  intercourse,  intercommunication,  and 
negotiation,  through  the  means  of  resident  or  special  ministers; 
and  the  power  of  entering  into  formal  and  binding  interna- 
tional compacts,  which  must  be  compulsive  on  all  departments 
of  the  government,  and  which  are  made,  by  the  express  terms 
of  the  Constitution,  the  supreme  law  of  the  land.  I  shall  con- 
sider these  two  branches  separately,  the  latter  being  much  the 
more  important. 

§  671.  The  President  is  the  sole  organ  of  communication 
between  our  own  and  all  other  governments.  Foreign  minis- 
ters and  ambassadors  are  accredited  to  him  ;  to  him  they  pre- 
sent their  credentials  and  pay  their  formal  official  visits.  The 
communications  which  they  make,  and  the  negotiations  which 
they  conduct,  are,  in  fact,  made  and  conducted  to  and  with  the 
Secretary  of  State,  but  only  as  that  officer  is  the  direct  and 
personal  organ  of  the  President.  All  replies  of  the  Secretary 
are  supposed  to  be  suggested  by  the  Chief  Magistrate,  and  he 
may,  and  doubtless  often  does,  take  an  actual  and  leading 
part  in  the  negotiation.  Our  own  ministers  are  nominated  by 
the  President.  When  appointed  they  communicate  alone  with 
the  Executive  through  the  State  Department.  Instructions  are 
»ent  to  them,  despatches  forwarded,  demands  made,  claims  in- 


THE   POWER   OVER  FOREIGN   RELATIONS.  447 

listed  on,  principles  adopted  and  enforced,  as  the  President 
deems  proper.  How  far  he  will  actually  interfere  with  the 
Secretary  of  State,  and  how  far  leave  that  officer  to  the  oxer 
cise  of  his  own  discretion,  must  depend  upon  his  own  sense  of 
duty  and  propriety,  and  the  completeness  of  his  own  convic- 
tions. 

§  672.  Over  all  these  proceedings  the  Congress  has  abso- 
lutely no  control.  The  correspondence  and  negotiations  may 
be,  and  generally  are,  conducted  secretly  ;  and  although  it  is 
customary  for  the  President  to  communicate  despatches  to  the 
legislature,  this  is  never  dene  until  after  their  transmission, 
and,  if  necessary,  they  may  be  indefinitely  withheld  when  the 
President  deems  that  the  public  interests  require  it.  Congress 
may  pass  resolves  in  relation  to  questions  of  an  international 
character;  but  these  can  only  have  a  certain  moral  weight; 
they  have  no  legal  effect ;  they  cannot  bind  the  Executive. 
The  necessity  for  this  is  evident.  Negotiations  generally  require 
a  certain  degree  of  secrecy ;  one  mind  and  will  must  always  be 
more  efficient  in  such  matters  than  a  large  deliberative  as- 
sembly. The  President  has  thus  intrusted  to  him  a  most 
momentous  power,  and  one  which  he  cannot  entirely  delegate. 
Our  foreign  ministers  must  undoubtedly  use  their  own  judg- 
ment and  discretion  within  narrow  limits,  but  in  all  important 
matters,  they  receive  definite  and  positive  instructions  from 
home.  The  magnitude  of  this  function  may  be  easily  illus- 
trated. The  President  cannot  declare  war;  Congress  alone 
possesses  this  attribute.  But  the  President  may,  without  any 
possibility  of  hindrance  from  the  legislature,  so  conduct  the 
foreign  intercourse,  the  diplomatic  negotiations  with  other  gov- 
ernments, as  to  force  a  war,  as  to  compel  another  nation  to 
take  the  initiative  ;  and  that  step  once  taken,  the  challenge 
cannot  be  refused.  How  easily  might  the  Executive  have 
plunged  us  into  a  war  with  Great  Britain  by  a  single  despatch 
in  answer  to  the  demands  of  the  British  Cabinet  made  in  re- 
lation to  the  affair  of  the  Trent.  How  easily  might  he  have 
provoked  a  condition  of  active  hostilities  with  France  by  the 
form  and  character  of  the  reclamations  made  in  regard  to  the 
occupation  of  Mexico. 


448  THE  POWER   TO   MAKE   TREATIES. 

I  repeat  that  the  Executive  Department,  by  means  of  this 
branch  of  its  power  over  foreign  relations,  holds  in  its  keeping 
the  safety,  welfare,  and  even  permanence  of  our  internal  and 
domestic  institutions.  And  in  wielding  this  power,  it  is  un- 
trammelled by  any  other  department  of  the  government  ;  no 
other  influence  than  a  moral  one  can  control  or  curb  it  ;  its 
acts  are  political,  and  its  responsibility  is  only  political. 

§  673.  But  the  other  branch  of  this  executive  function  — 
the  treaty-making  power  —  is  oven  more  important.  The 
language  by  which  this  authority  is  conferred  and  described,  is 
peculiar.  The  President  shall  have  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make  treaties,  provided 
that  two  thirds  of  the  Senators  present  concur.  All  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land.  The 
President  must,  of  course,  take  the  initiative  in  making  all 
treaties.  Congress,  as  such,  has  nothing  to  say  in  the  matter. 
As  a  treaty  is  necessarily  the  result  of  negotiation,  and  as  such 
negotiation  is  exclusively  within  the  province  of  the  President, 
the  Senate  having  not  the  least  authority  to  communicate 
with  a  foreign  government,  it  is  absolutely  impossible  for  that 
body  to  dictate  a  treaty,  or  to  force  the  Chief  Magistrate  into 
any  particular  line  of  action.  He  must  negotiate  the  treaty, 
make  all  the  stipulations,  determine  all  the  subject-matter,  and 
then  submit  the  perfected  convention  to  the  Senate  for  ratifi- 
cation or  rejection.  They  must  take  his  finished  work  and 
approve  or  disapprove. 

§  674.  But  there  is  another  principle  of  the  utmost  moment, 
involving  conclusions  of  far-reaching  importance.  The  Con- 
stitution places  no  express  limits  whatever  upon  the  subjects, 
conditions,  or  contents  of  treaties.  The  President  shall  have 
power  to  make  treaties.  Now,  the  subjects  to  which  these 
international  compacts  may  legitimately  refer,  are  innumer- 
able ;  the  stipulations  they  may  legitimately  contain,  are 
equally  varied,  dependent  upon  numberless  changes  of  circum- 
stances and  relations.  They  may  affect  most  vitally  the  inter, 
ests  of  the  nation  as  a  whole,  or  the  private  and  personaj 
interests  of  individuals.     They  may  be  the  results  of  success 


THE   POWER   OVER    FOREIGN   RELATIONS.  449 

fill  war  or  of  negotiation,  by  which  territory  is  added  ;  or  of 
unsuccessful  war  or  of  negotiation,  by  which  territory  is  ceded. 
They  may  regulate  navigation,  the  import  and  export  of  goods, 
the  imposition  of  duties,  the  rights  of  aliens,  the  tenure  of 
property  Congress,  having  no  power  over  them,  cannot  ab- 
rogate or  modify  them.  In  general,  therefore,  the  President, 
with  the  consent  of  the  Senate,  may  enter  into  any  species  of 
treaty  known  in  the  intercourse  of  nations,  any  species  known 
to  the  international  law.  The  genus  "treaties"  includes  all 
the  usual  kinds  and  sorts. 

§  675.  While  the  President's  function  is  in  general  so  un- 
restricted, and  although  the  Constitution  places  no  express 
limits  upon  its  exercise,  there  is  plainly  an  implied  limitation. 
I  have  no  doubt  that  a  treaty  may  be  made  which  cuts  off  the 
authority  of  Congress  to  adopt  certain  particular  means  and 
measures  by  which  they  might  have  otherwise  exercised  some 
of  their  general  powers.  The  convention  by  which  certain 
reciprocal  privileges  of  trade  were  established  between  the 
United  States  and  the  Canadas  ;  that  by  which  certain  tonnage 
duties  and  other  commercial  imposts  are  abandoned  by  the 
United  States  and  France  ;  that  by  which  a  certain  local  juris- 
diction in  peculiar  cases  is  given  to  some  foreign  officials  resi- 
dent here,  are  illustrations  of  international  compacts  having  this 
restraining  effect.  But  I  think  it  is  equally  certain  that  a  treaty 
would  be  a  mere  nullity  which  should  attempt  to  deprive  Con- 
gress, or  the  Judiciary,  or  the  President,  of  any  general 
powers  which  are  granted  to  them  by  the  Constitution.  The 
President  cannot,  by  a  treaty,  change  the  form  of  government, 
or  abridge  the  general  functions  created  by  the  organic  law. 
That  a  treaty  may  add  particular  functions  and  attributes  net 
expressly  conferred  or  described  in  the  Constitution,  cannot  be 
doubted ;  indeed,  almost  every  such  convention  must  have 
this  effect  in  a  greater  or  less  degree.  Note,  also,  that  all 
treaties  made  by  authority  of  the  United  States  are,  equally 
with  the  Constitution  and  the  laws  of  Congress  passed  under 
it,  the  supreme  law  of  the  land,  and  are  binding  upon,  and 
superior  to,  state  authority,  whether  that  be  expressed  in  state 
tonstitutions  or  state  laws. 
29 


450  THE    POWER   TO  MAKE   TREATIES 

§676.  Let    us   inquire   in    what   manner    treaties   operate: 
whether  they  are  compulsive  by  and  of  themselves,  or  whethei 

they  require  a  statute  of  Congress  to  make  them  effective? 
The  lanffuase  of  the  Constitution  would  seem  to  be  explicit  on 
this  point  ;  but  the  Supreme  Court  has  given  the  authoritative 
rule.  Some  treaties  are  so  worded  that,  by  their  very  terms, 
they  apply  directly  to  the  subject-matter.  They  do  not  stipu- 
late for  any  thing  to  be  done  in  the  future  ;  their  provisions 
are  not  promissory  ;  but  they  declare  that  a  certain  thing, 
state,  condition,  or  right  does  thereby  exist.  Other  treaties 
are  wholly  or  partly  executory ;  they  agree  that  a  certain  thing 
shall  be  done.  In  regard  to  the  first  class,  they  are  of  them- 
selves law  ;  binding  as  such  upon  all  public  officers,  and  upon 
all  private  persons.  In  regard  to  the  second  class,  they  are, 
as  such,  binding  only  upon  the  government,  and  require  legisla- 
tive or  executive  acts,  as  the  case  may  be,  to  render  them 
operative.  As  there  is  no  possible  manner  of  forcing  Congress 
to  pass  a  law  carrying  out  the  provisions  of  such  a  merely 
promissory  convention,  the  only  remedy  which  the  other  high 
contracting  party  would  have,  for  the  neglect  or  refusal  of  the 
legislature  to  perform  its  stipulated  duty,  would  be  to  treat  the 
neglect  or  refusal  as  a  breach  of  the  treaty,  and  a  good  cause 
of  war.  That  it  would  be  sufficient  ground  for  war,  according 
to  the  settled  rules  of  international  law,  cannot  for  a  moment 
be  doubted. 

§  677.  In  Foster  v.  Neilson,1  a  case  growing  out  of  the 
treaty  by  which  Louisiana  was  ceded  to  the  United  States, 
the  foregoing  principles  were  established.  Chief  Justice  Mar- 
shall says,  as  the  very  ratio  decidendi :  "  A  treaty  is  in  its 
nature  a  contract  between  two  nations,  not  a  legislative  act. 
It  does  not  generally  effect  of  itself  the  object  to  be  accom- 
plished, especially  so  far  as  its  object  is  infra-territorial  ;  but  is 
carried  into  execution  by  the  sovereign  powers  of  the  respec- 
tive parties  to  the  instrument,  In  the  United  States  a  differ- 
ent principle  is  established.  Our  Constitution  declares  a  treaty 
to  be  the  law  of  the  land.  It  is  consequently  to  be  regarded 
in  the  courts  of  justice  as  equivalent  to  an  act  of  the  legislature, 
1  2  Peters'  R.  253,  314. 


THE    POWER   OVER   FOREIGN   RELATIONS.  451 

whenever  it  operates  of  itself,  without  tin.  aid  of  any  legisla- 
tive provision.  But  when  the  terms  of  the  stipulation  import 
a  contract,  when  either  of  the  parties  engages  to  perform  a 
particular  act,  the  treaty  addresses  itself  to  the  political,  not 
the  judicial  department  ;  and  the  legislature  must  execute  the 
contract  before  it  can  become  a  rule  for  the  courts." 

§  078.  One  modification  of  this  language  is  required.  No 
doubt,  when  either  of  the  parties  to  the  treaty  engages  to  per- 
form a  particular  act,  the  convention  addresses  itself  to  the 
political  departments  of  the  government.  But  it  is  only  when 
the  act  stipulated  to  be  done,  is  legislative  under  the  Constitu- 
tion, that  Congress  must  execute  the  contract  ;  when  the  act 
is  executive  in  its  nature,  the  President  must  execute  the  con- 
tract. One  illustration  will  suffice  to  explain  this  distinction. 
If  a  treaty  should  be  made  between  the  United  States  and 
Great  Britain,  having  for  its  object  the  more  complete  sup- 
pression of  the  slave-trade,  each  of  the  high  contracting  parties 
might  undertake  to  keep  a  squadron  of  armed  vessels  on  the 
coast  of  Africa,  to  search  and  seize  slavers  ;  and  it  might  also  be 
agreed  that  a  mixed  commission,  or  court,  of  both  Englishmen 
and  Americans,  should  be  appointed  to  sit  in  the  regions  in- 
fested with  slavers,  and  to  adjudicate  upon  the  vessels  seized 
under  the  treaty.  This  convention  would  evidently  address 
itself  to  the  political  departments  ;  from  its  mere  language  no 
private  rights  or  duties  could  arise  and  be  enforced  by  the 
courts.  But  it  would  address  itself  partly  to  Congress  and 
partly  to  the  President.  The  latter  might,  on  his  own  motion, 
despatch  and  maintain  a  naval  squadron  on  the  coasts  of  Africa  ; 
for  the  disposition  of  the  navy  is  left  entirely  to  him  as  Com- 
mander-in-Chief. But  the  provision  in  reference  to  a  mixed 
court  or  commission  would  address  itself  to  both  departments. 
Congress  alone  could  create  the  new  office,  and  provide  for  the 
payment  of  salaries  ;  the  President  alone  could  nominate  a 
person  to  fill  the  office  when  created.  No  private  individual, 
'io  public  officer,  no  foreign  power,  could  legally  compel  either 
department  to  do  what  was  agreed  to  be  done.  The  only 
.remedy  of  Great  Britain,  in  case  of  refusal,  would  be  war. 
We  see,   therefore,  that    the   President,   through    his  treaty 


152  THE   POWER    TO   MAKE    TREATIES. 

making  function,  may  so  bind  the  Congress,  that  their  act  of 
neglect  or  refusal  to  comply  with  the  compact,  may  give  rise 
to  the  dread  penalty  of  war.  He  may  so  bind  the  legislature, 
that  they  cannot  free  themselves  from  the  obligation,  except 
by  declaring  war  against  the  other  contracting  nation  ;  all  their 
attempts  to  throw  off  the  compulsive  efficacy  of  the  treaty,  less 
stringent  than  this,  would  be  utterly  null  and  void. 

§  679.  In  conclusion,  I  shall  add  a  lew  remarks  upon  the 
scope  and  extent  of  this  executive  function  of  regulating  foreign 
relations,  and  its  influence  and  effect  upon  the  general  powers 
of  the  national  government.  There  is  here,  as  I  believe,  a 
mine  of  power  which  has  been  almost  un worked,  a  mine  rich 
in  beneficent  and  most  efficacious  results.  The  President  may, 
and  must,  manage  the  foreign  relations  ;  he  may,  in  the  man- 
ner prescribed,  enter  into  treaties.  To  these  executive  attri- 
butes must  be  added  the  legislative  authority  to  pass  all  laws 
which  may  be  necessary  and  proper  to  aid  the  President  in  ex- 
ercising these  functions.  From  this  combination  there  result 
particular  powers  in  the  national  government  commensurate 
with  the  needs  of  every  possible  related  occasion.  We  have 
been  too  much  accustomed  to  look  at  the  particular  grants  con- 
tained in  the  Constitution,  in  order  to  ascertain  what  the  gov- 
ernment may  do.  But  here  is  a  most  ample  and  comprehensive 
grant.  The  government  not  only  may,  but  must,  preserve  its 
foreign  relations ;  it  not  only  may,  but  must,  use  all  such 
means  as  shall  prevent  just  causes  of  war  against  us  by  foreign 
powers.  Its  international  relations  are  unlimited  in  number 
and  extent;  they  affect  to  a  greater  or  less  degree  the  internal 
and  domestic  relations  ;  many  of  the  measures  which  are 
necessary  to  preserve  and  control  them,  must  act  entirely 
within  the  national  territory,  and  directly  upon  private  per- 
sons or  rights.  So  far  as  those  external  relations  affect  the 
internal,  and  so  far  as  the  measures  appropriate  in  exercising 
the  function  of  controlling  the  external  relations  act  within  the 
interior,  and  upon  private  persons  and  rights,  just  so  far  has 
the  government  all  the  power  under  the  Constitution  which 
die  exigencies  of  any  occasion  can  demand.  Where  the  act  is 
legislative  in  its  nature,  the  Congress  may  legislate  ;  where  the 
act  is  executive  in  its  nature,  the  President  may  execute. 


THE   POWER   OVER   FOREIGN  RELATIONS.  453 

§  680.  A  few  examples  will  serve  to  illustrate  this  proposi- 
tion. In  the  absence  of  all  express  grants  to  Congress  to  de- 
fine and  punish  offences  against  the  law  of  nations,  or  even  to 
define  and  punish  any  crimes,  there  could  be  no  doubt  of  the 
complete  authority  of  the  national  legislature  to  pass  neutrality 
laws,  and  all  other  statutes  of  the  same  general  class.  Fitting 
out  armed  vessels  in  aid  of  one  belligerent,  foreign  enlistments 
within  our  territory,  armed  expeditions  organized  against 
friendly  states,  would,  if  permitted,  if  not  repressed,  en- 
danger our  peaceful  relations  with  the  injured  nations.  These 
relations  require  that  causes  of  war  should  be  removed  or  pre- 
vented ;  the  President  has  ample  power,  so  far  as  his  mere 
executive  functions  go ;  Congress  may  aid  those  executive 
functions  by  any  means  and  measures  which  are  conducive  to 
the  end  proposed. 

But  Congress  may,  in  aid  of  this  function  of  the  President, 
pass  laws  which  are  addressed  directly  to  the  separate  states, 
and  which  control  the  acts  of  their  governments.  The  states 
have  no  international  status;  but  they  may,  through  their 
governments,  do  such  acts  as  endanger  the  foreign  relations  of 
the  nation :  for  these  acts  the  government  is  responsible  to  the 
foreign  power,  and  cannot  evade  the  responsibility  by  assert- 
ing its  want  of  control  over  the  state.  As  the  responsibility 
rests  upon  it,  the  power  must  belong  to  it.  Conoress  has 
acted  upon  this  view  of  its  legislative  functions,  by  passino-  a 
statute  permitting  the  United  States  courts  to  issue  the  writ 
of  Habeas  Corpus  in  order  to  inquire  into  the  cause  of  restraint 
of  any  alien,  where  restrained  for  an  act  done  by  him  unde: 
the  authority  of  his  own  government.  Thus  a  prisoner  may 
be  removed  from  the  jurisdiction  of  the  state,  and  transferred 
to  that  of  the  United  States.  This  law  was  passed  upon  an 
occasion  when  the  necessity  of  such  legislation  was  clearly  evi- 
dent, and  when  a  Avar  with  Great  Britain  was  imminent 
through  the  obstinacy  of  the  New  York  authorities  in  refusing 
to  surrender  a  British  subject  into  the  custody  of  the  nation. 
This  principle  may  evidently  be  extended  to  other  cases.  I 
Sim  of  opinion  that  the  general  government,  under  its  function 
of  controlling  international  relations,  has  the  power,  by  proper 


454  THE   POWER   TO   MAKE   TREATIES. 

legislation,  to  prevent  a  state  from  repudiating  its  public  debt, 
bo  far  as  that  debt  may  be  held  by  foreign  citizens.  I  repeat, 
that  in  this  Executive  attribute,  and  in  the  capacity  of  Con- 
gress to  pass  laws  in  aid  thereof,  there  is  a  source  of  power 
which  has,  as  yet,  been  little  resorted  to,  which  has  even  been 
little  thought  of,  but  which  is  fruitful  in  most  important  and 
salutary  results. 

§  681.  When  we  reflect  upon  the  great  variety  of  treaties 
which  may  be  made,  and  the  compulsive  character  which  the 
Constitution  stamps  upon  them,  the  power  of  the  general  gov- 
ernment, through  their  means,  to  control  state  legislation,  is 
even  more  plainly  apparent.  With  one  illustration  T  leave 
this  subject.  A  few  years  ago,  the  United  States  concluded  a 
treaty  with  France,  by  which  it  was  mutually  stipulated  that 
the  citizens  of  each  nation  should  have  the  same  rights  to  ac- 
quire  and  hold  property  of  every  description  in  the  territory 
of  the  other  contracting  party,  that  the  citizens  of  the  latter 
possessed  by  its  own  laws.  The  French  laws  make  no  differ- 
ence between  the  power  to  acquire  and  hold  personal  and  real 
property.  Many  of  the  American  states,  borrowing  the  rules 
of  the  Common  Law,  make  a  substantial  difference.  The 
treaty  on  the  part  of  the  United  States  stipulated  that  the 
general  government  should  urge  upon  the  states  where  aliens 
are  incapacitated  in  any  degree  from  acquiring  and  holding 
real  estate,  to  make  a  change  in  their  local  laws  in  that  re- 
spect, in  favor  of  French  citizens.  This  latter  provision  was 
clearly  useless.  If  the  treaty  had  expressly  declared  that 
French  subjects  may  have  full  powers  and  rights  to  acquire  and 
hold  lands  in  any  part  of  the  United  States,  such  compact 
would  have  overridden,  in  favor  of  Frenchmen,  any  state  law 
forbidding  aliens  to  acquire  and  hold  real  property.  And  such 
compact  would  have  executed  itself;  it  would  have  become 
part  of  the  supreme  law  of  the  land  ;  it  would  have  required 
no  Congressional  sanction  ;  state  courts  would  have  been 
bound  to  give  it  force.  In  fact,  the  treaty  of  1794,  between 
Great  Britain  and  the  United  States,  contained  a  provision 
.dentical  in  principle  with  the  one  supposed  ;  for  the  citizens 
»f  each  country  were  allowed  to  hold  and  inherit  lands  held 


THE   TOWER   TO    GRANT   PARDONS.  455 

by  them  or  their  ancestors  in  the  other  country  prior  to  the 
Revolution.  It  is,  therefore,  possible  at  the  present  day  for  a 
British  subject  to  inherit  lands  in  the  United  States,  notwith- 
standing the  laws  of  the  particular  state  in  which  they  are  situ- 
ated may  deny  to  an  alien  this  capacity.  The  validity  of  the 
stipulation  has  been  repeatedly  recognized  and  affirmed  by  the 
national  and  state  courts,  and  many  existing  titles  are  based 
upon  it. 

SECTION  V. 

THE    POWER    OF    THE    PRESIDENT    TO    GRANT    REPRIEVES    AND 
PARDONS. 

§  682.  This  power  is  conferred  in  the  following  language  : 
"  He  shall  have  power  to  grant  reprieves  and  pardons  for 
offences  against  the  United  States,  except  in  cases  of  im- 
peachment." 

A  reprieve  is  simply  the  suspension  of  a  sentence,  by  which 
its  execution  is  deferred,  without  there  being  any  remission  or 
change  in  the  substance  of  the  punishment. 

A  pardon  is  said  by  Lord  Coke  to  be  "  a  work  of  mercy, 
whereby  the  king,  either  before  attainder,  sentence,  or  convic- 
tion, or  after,  forgiveth  any  crime,  offence,  punishment,  exe 
cution,  right,  title,  debt,  or  duty."  He  adds  :  "  All  pardons  of 
treason  or  felony  are  to  be  made  by  the  king,  and  in  his  name 
only,  and  are  either  general  or  special.  All  pardons,  either 
general  or  special,  are  either  by  act  of  Parliament,  or  by  the 
charter  of  the  king."  1  A  pardon  is  frequently  conditional,  as 
the  king  may  extend  his  right  upon  what  terms  he  please,  or 
annex  to  his  bounty  a  condition  precedent  or  subsequent,  on 
the  performance  of  which  the  validity  of  the  pardon  will 
depend. 

The  general  language  above  quoted  must  be  taken  with 
the  following  limitations,  which,  indeed,  Lord  Coke  expressly 
makes.  The  right,  title,  debt,  or  duty  which  the  king  may 
forgive,  must  be  one  due  or  owing  to  the  state,  and  not  one 
owing  to  a  private  person.     Also,  the  offence  must  have  been 

1  3  Inst.  233. 


156        THE  POWER  TO  GRANT  PARDONS. 

committed,  and  the  liability  to  penalty  must  therefore  have 
accrued.  A  permission  given  to  a  person  or  class  of  persons 
to  commit  offences,  with  a  pardon  remitting  the  penal  conse- 
quences thereof,  would  be  absolutely  void.  The  prerogative 
to  issue  such  promissory  pardons  was  once  claimed  by  the 
crown  ;  but  the  claim  has  long  been  abandoned  It  would 
amount  to  a  power  of  dispensing  with  the  compulsive  effect  of 
statutes,  or  of  the  law  generally,  which  the  English  people 
have  resisted  with  success.  In  the  United  States  v.  Wilson,1 
Chief  Justice  Marshall,  with  his  usual  conciseness  and  clear- 
ness, gave  a  most  admirable  definition  of  a  pardon.  He  says  : 
"A  pardon  is  an  act  of  grace,  proceeding  from  the  power  en- 
trusted with  the  execution  of  the  laws,  which  exempts  the 
individual  on  whom  it  is  bestowed  from  the  punishment  the 
law  inflicts  for  a  crime  he  has  committed." 

§  683.  Sir  William  Blackstone,  in  the  fourth  Book  of  his 
Commentaries,  speaks  of  pardons  as  an  absolute  prerogative  of 
the  crown  ;  he  falls  into  a  rapture  over  the  beneficent  effects 
of  this  prerogative ;  he  asserts  that  it  is  a  most  conclusive 
proof  of  the  superlative  excellence  of  the  monarchical  form  of 
government ;  he  leaves  the  impression  that  no  one  but  the 
king  can  pardon.  Sir  William  Blackstone's  high  Tory  views 
are  well  known  ;  his  statements  in  regard  to  the  crown  and 
its  powers  and  prerogatives,  must  all  be  taken  with  much 
allowance.  Blackstone  himself,  in  a  subsequent  part  of  his 
mapter  on  pardons,  speaks  of  those  granted  by  Parliament  as 
Having  the  greater  efficacy,  in  that  a  pardon  granted  by  the 
kino-  after  an  attainder  of  felony,  did  not  destroy  the  corrup- 
tion of  blood,  while  that  granted  by  Parliament  did  ;  and  in 
that  a  pardon  granted  by  the  king  before  conviction  must  be 
specially  pleaded,  while  one  granted  by  Parliament  will  be  ju- 
dicially noticed  by  the  courts.  This  citation  shows  that  Black- 
stone, notwithstanding  his  general  declarations  in  regard  to 
the  prerogative  of  the  crown,  admits,  as  he  must,  and  as  Lord 
Coke  expressly  declares,  that  the  British  Parliament  possess 
the  same  power. 

§  684.  Can  we  argue  from  this  state  of  things  in  England 

1  7  Peters'  R.  150,  159. 


THE  POWER  TO   GRANT  PARDONS.  457 

to  our  own  country  ?  We  cannot  entirely,  but  may  partially. 
So  far  as  the  grants  of  power,  legislative  or  executive,  are  con- 
cerned, we  must  be  governed  entirely  by  our  Constitution. 
Congress  cannot  do  an  act  simply  because  Parliament  may, 
but  only  because  the  organic  law  expressly  or  impliedly  says 
they  may.  The  President  cannot  do  an  act  simply  because 
the  British  crown  may,  but  only  because  the  Constitution, 
either  by  its  specific  or  by  its  general  grants,  has  clothed  him 
with  authority.  But  on  the  other  hand,  when  the  Constitu- 
tion, in  conferring  powers  upon  either  department,  has  used 
general  language  familiar  to  the  common  law  of  England, 
which  it  has  not  attempted  to  define  or  limit,  and  when  this 
language  has  particular  reference  to  the  private  rights,  liber- 
ties, and  privileges  of  the  citizen,  and  not  to  mere  political 
functions,  we  must  go  back  to  the  English  law  to  discover  the 
full  meaning  of  the  terms  employed,  and  the  consequent  ex- 
tent of  the  powers  granted. 

With  the  aid  of  these  canons  of  interpretation,  I  propose  to 
examine  (1)  the  powers  of  the  President  to  grant  pardons, 
and  (2)  the  powers  of  Congress  over  the  subject. 

§  685.  I.  The  Extent  of  the  President's  Power.  —  He  shall 
have  power  to  grant  pardons.  Pardons  are  not  defined ;  no 
classification  is  made ;  no  statement  of  the  occasions  on  which 
they  may  be  used  ;  nothing  descriptive  or  definitive.  To  ob- 
tain this  particular  and  special  meaning  which  shall  interpret 
the  clause,  which  shall  throw  light  upon  the  executive  au- 
thority, we  must  go  back  to  the  English  law  and  inquire  what 
pardon  meant  there  ;  what  pardons  might  there  be  granted  ; 
on  what  occasions  ;  and  with  what  effect.  The  extent  of  the 
President's  function  will  thus  be  ascertained  ;  he  may  resort 
to  the  act  of  grace  whenever,  under  whatever  circumstances, 
it  might  have  been  resorted  to  in  England.  This  fundamental 
principle  has  been  expressly  recognized  in  one  decision,  and 
solemnly  affirmed  as  the  rxtio  de-cidendi  in  two  judgments  of 
the  national  Supreme  Court.  Thus,  in  the  case  of  the  United 
States  v.  Wilson,1  Chief  Justice  Marshall  said  :  "  The  power 
,o  pardon  had  been  exercised  from  time  immemorial  by  the 
1  7  Peters'  R.  150. 


458  DIFFERENT   KINDS    OF  PARDONS. 

Executive  of  that  nation  whose  language  js  our  language,  and 

©  ©  ©  ©      ' 

to  whose  judicial  institutions  ours  bear  a  close  resemblance  ; 
we  adopt  their  principles  respecting  the  operation  and  effect  of 
a  pardon,  and  look  into  their  books  for  the  rules  prescribing 
the  manner  in  which  it  is  to  be  used  by  the  person  who  would 
avail  himself  of  it." 

§  686.  In  Ex  parte  Wells,1  the  Supreme  Court  examined 
this  subject  with  great  care,  in  deciding  upon  the  validity  of  a 
conditional  pardon  which  had  been  granted  by  the  President. 
They  said  :  "  In  the  law  '  pardon  '  has  different  meanings, 
which  were  as  well  understood  when  the  Constitution  was 
made,  as  any  other  legal  word  in  the  Constitution  now  is. 
Such  a  thing  as  a  pardon  without  a  designation  of  its  kind  is 
not  known  in  the  law.  Time  out  of  mind,  in  the  earliest 
books  of  the  English  law,  every  pardon  has  its  particular  de- 
nomination. They  are  general,  special  or  particular,  condi- 
tional, absolute,  statutory,  not  necessary  in  some  cases,  and  in 
some  prantable  of  course We  might  mention  other 

©  © 

legal  incidents  of  a  pardon,  but  those  mentioned  are  enough  to 
illustrate  the  subject  of  pardons,  and  the  extent  or  meaning  of 
the  President's  power  to  grant  reprieves  or  pardons.  It 
meant  that  the  power  was  to  be  used  according  to  law  ;  that 
is,  as  it  had  been  used  in  England,  and  in  these  states  while 
they  were  colonies  ;  not  because  it  was  a  prerogative  power, 

but  as  incidents  of  the   power  to   pardon We   think 

that    the    language   used  in   the   Constitution    conferring;    the 

©  ©  © 

power  to  grant  reprieves  and  pardons,  must  be  construed  with 
reference  to  its  meaning  at  the  time  of  its  adoption.  At  the 
time  of  our  separation  from  Great  Britain,  that  power  had 
been  exercised  by  the  king  as  the  chief  executive.  Prior  to 
the  Revolution,  the  colonies  being  in  effect  under  the  laws  of 
England,  were  accustomed  to  the  exercise  of  it  in  the  various 
"orms  as  they  may  be  found  in  the  English  law  books.  They 
were  of  course  to  be  applied  as  occasions  occurred,  and  they 
constituted  a  part  of  the  jurisprudence  of  Anglo- America. 
At  the  time  of  the  adoption  of  the  Constitution,  American 
statesmen  were  conversant  with  the  laws  of  England,  and 
1  18  Howard's  R.  307,  310,  311. 


THE  POWER  TO  GRANT  PARDONS.        459 

familiar  with  the  prerogatives  exercised  by  the  crown.  Hence, 
when  the  words  '  to  grant  pardons  '  were  used  in  the  Consti- 
tution, they  conveyed  to  the  mind  the  authority  as  exercised 
by  the  English  crown,  or  by  its  representatives  in  the  colonies. 
At  that  time  both  Englishmen  and  Americans  attached  the 
same  meaning  to  the  word  pardon.  In  the  convention  which 
framed  the  Constitution,  no  effort  was  made  to  define  or 
change  its  meaning,  although  it  was  limited  in  cases  of  im- 
peachments."  In  another  portion  of  the  same  judgment,  the 
court  said  : 1  "  But  it  was  urged  that  the  power  to  reprieve 
and  pardon  does  not  include  the  power  to  grant  a  conditional 
pardon,  the  latter  not  having  been  enumerated  in  the  Con- 
stitution as  a  distinct  power.  It  not  unfrequently  happens  in 
discussions  upon  the  Constitution,  that  an  involuntary  change 
is  made  in  the  words  of  it.  And  even  though  the  change 
may  appear  to  be  equivalent,  it  will  be  found,  upon  reflection, 
not  to  convey  the  full  meaning  of  the  words  used  in  the  Con- 
stitution. This  is  an  example  of  it.  The  power  as  given  is 
not  to  reprieve  and  pardon,  but  that  the  President  shall  have 
power  to  grant  reprieves  and  pardons.  The  difference  be- 
tween the  real  language  and  that  used  in  the  argument  is 
material.  The  latter  conveys  only  the  idea  of  an  absolute 
power  as  to  the  purpose  or  object  for  which  it  was  given. 
The  real  language  of  the  Constitution  is  general,  that  is, 
common  to  the  class  of  pardons,  or  extending  the  power  to 
pardon  to  all  kinds  of  pardo7is  known  in  the  laiv  as  such,  what- 
ever may  be  their  denomination.  We  have  shown  that  a  con- 
ditional pardon  is  one  of  them.  In  this  view  of  the  Constitu- 
tion, by  giving  to  its  words  their  proper  meaning,  the  power 
to  pardon  conditionally  is  not  one  of  inference  at  all,  but  one 
3onferred  in  terms."  These  views  were  again  distinctly 
affirmed  by  the  same  court  in  Ex  parte  Garland.2 

§  687.  Applying  these  principles  to  the  determination  of 
the  President's  power,  we  say  that  be  may  resort  to  all  the 
species  which  are  included  in  the  genus  mentioned  in  the 
Constitution;  he  may  at  his  discretion  employ  all  the  special 
ic'i  of  grace  which  in  the  English  law  would  fairly  fall  under 
i  18  Howard's  R.  314.  2  4  Wallace's  R.  333,  380. 


460  DIFFERENT   KINDS   OF   PARDONS. 

the  general  terra  pardon.  There  were  certain  kinds  of  pardons 
issued  on  certain  different  occasions,  and  having  certain  different 
effects.  The  President  may  use  any  of  these  at  will.  Thus, 
after  the  indictment,  trial,  conviction,  and  sentence  of  an 
offender,  a  pardon  may  be  granted  to  him  for  that  particular 
offence,  which  shall  have  the  effect  to  remit  the  whole  pun- 
ishment, or  that  portion  of  it  not  yet  inflicted,  and  to  restore 
the  person  to  all  the  rights  which  he  may  have  forfeited  as  a 
penalty  of  his  crime.  Such  a  pardon  would  of  course  address 
itself  to  the  ministerial  officers  who  are  charged  with  the  duty 
of  executing  the  sentence.  This  is  by  far  the  most  common 
form  of  pardon  used  in  modern  times. 

§  688.  A  second  species  known  to  the  English  law  was  the 
conditional  pardon,  generally  issued  after  conviction  and  sen- 
tence, where  the  kino;  annexed  some  condition  to  his  act  of 
grace,  which  the  offender  must  accept  and  perform,  or  the 
pardon  would  be  a  nullity.  The  condition  usually  consisted 
in  the  substitution  of  some  other  punishment  in  the  place  of 
that  which  had  been  awarded  by  the  court ;  or  it  might  re- 
quire of  the  criminal  that  he  should  do  some  positive  act,  as  to 
leave  the  kingdom  and  live  abroad.  The  former  kind  of  con- 
ditions are  often  known  as  commutations  of  the  original  sen- 
tence, and  are  to  be  distinguished  from  those  absolute  pardons 
which  remit  part  of  a  punishment,  leaving  the  residue  as  orig- 
inallv  imposed,  and  substituting  no  other  penalty  in  the  place 
of  that  remitted.  The  power  of  the  President  to  issue  con- 
ditional pardons  was  discussed  and  most  conclusively  estab- 
lished in  Ex  parte  Wells1  before  referred  to. 

§  689.  The  king  might  also  grant  a  pardon  to  a  particular 
offender,  forgiving  him  some  specified  crime,  or  all  the  crimes 
which  he  had  committed,  at  any  time  before  conviction,  and 
even  before  trial,  or  indictment,  or  apprehension,  or  any 
official  charge  of  crime  made  against  the  person.  Such  a 
pardon  must  address  itself  to  the  courts  before  which  the 
Jidividual  might  afterwards  be  brought  for  trial ;  it  must  be 
Drought  to  the  notice  of  the  judges  as  a  fact.  By  the  ancient 
English  rules  of  pleading  in  criminal  causes,  it  was  requ."ec 
i  18  Howard's  R.  307. 


THE    ROWER   TO    GRANT   PARDONS.  461 

that  such  a  pardon,  if  received  before  conviction,  should  be 
pleaded  in  bar  of  the  indictment ;  but  if  received  after  con- 
viction and  before  sentence,  should  be  pleaded  in  arrest  of 
judgment.  It  is  more  than  probable  that  at  the  present  day 
it  would  be  considered  sufficient  to  present  such  a  pardon  to 
the  notice  of  the  court  by  motion,  and  that  a  formal  plea  would 
not  be  required.  Even  in  the  English  law  such  formality  was 
not  required  in  at  least  one  instance.  Where  Parliament 
pardons  all  persons,  without  any  description  of  their  offences, 
they  need  not  plead  the  act  of  grace,  but  the  courts  will  tako 
judicial  notice  thereof.1 

Pardons  issued  before  conviction,  or  trial,  or  indictment,  01 
any  official  proceeding,  are  well  known  to  the  English  law  ; 
indeed  there  is  no  doubt  that  anciently  they  were  more  com- 
mon than  any  other  kind.  Of  course  they  assume  that  a  par- 
ticular person  has,  before  the  act  of  grace,  committed  some 
offence  against  the  laws,  for  which  he  would  be  criminally 
liable.  They  must  apply  to  an  existing  state  of  circum- 
stances, where  the  liability  has  been  fixed,  and  nothing  re- 
mains to  be  done  but  to  enforce  that  liability  through  the 
remedial  process  of  the  courts. 

§  690.  The  President  has,  under  the  generic  language  of 
the  Constitution,  full  power  to  issue  pardons  to  particular 
offenders  before  conviction,  trial,  indictment,  or  any  official 
proceeding  against  them.  This  conclusion  is  inevitable  from 
the  reasoning  in  Ex  parte  Wells  quoted  in  §  686.  But  the 
Supreme  Court  has  expressly  decided  the  point.  In  Ex  parte 
Garland,2  the  petitioner  Garland  had  been  engaged  in  the 
rebellion  ;  the  President  had  granted  him  a  full  pardon  al- 
though no  criminal  proceedings  had  been  instituted  against 
him  ;  he  applied  to  be  re-admitted  to  practice  at  the  bar  of  the 
Supreme  Court  without  taking  the  test  oath  ;  and  rested  his 
case  partly  upon  the  pardon  he  had  received.  The  court,  by 
Mr.  Justice  Field,  said  :  "The  power  thus  conferred  [to  grant 
pardons]  is  unlimited,  with  the  exception  stated  [as  to  imp- 
eachments]. It  extends  to  every  offence  known  to  the  law, 
and  may  be  exercised  at  any  time  after  its  commission,  either 
*  1  Cbitty's  Cr.  Law,  466.  2  4  Wallace's  R.  333,  380. 


462  GENERAL  AMNESTIES. 

before  legal  proceedings  are  taken,  or  during  their  pendency 
or  after  conviction  and  judgment.  This  power  of  the  Presi- 
dent is  not  subject  to  legislative  control.  Congress  can  neither 
limit  the  effect  of  his  pardon,  nor  exclude  from  its  exercise 
any  class  of  offenders.  The  benign  prerogative  of  mercy 
reposed  in  him  cannot  be  fettered  by  any  legislative  restric- 
tions." The  dissenting  judges  did  not  deny  the  correctness 
of  these  doctrines.  They  simply  claimed  that,  as  the  statute 
requiring  a  test  oath  did  not  impose  any  penalty  or  punish- 
ment, but  only  prescribed  a  qualification,  the  pardon  did  not 
reach  this  case  and  relieve  from  the  necessity  of  subscribing  to 
the  oath. 

§  691.  May  the  President,  under  this  grant  of  the  Consti- 
tution, issue  a  general  pardon  to  a  class  of  offenders,  without 
designating  any  particular  individuals  by  name?  At  the 
present  day  such  an  act  of  grace  is  often  called  a  general  am- 
nestv.  Although  the  word  is  current  in  our  literature,  and 
has  a  quasi-legal  signification,  yet  amnesty  is  not  a  technical 
word  of  the  common  law  ;  it  is  not  to  be  found  in  the  old 
abridgments,  digests,  and  text-books  as  a  term  of  art.  Some 
discussion  has  lately  arisen  in  regard  to  the  comparative  scope 
and  efficacy  of  an  amnesty  and  of  a  pardon.  It  has  been  said 
that  a  pardon  simply  removes  the  penal  consequences  of  a 
crime,  while  an  amnesty  blots  out  the  crime  altogether,  and 
leaves  the  offender  as  though  it  had  never  been  committed. 
The  correctness  of  any  such  distinction  in  the  English  law 
may  well  be  doubted  ;  but  it  is  sufficient  to  say  that  if  an  am- 
nesty is  something  greater  and  more  efficient  than  a  pardon, 
then  it  certainly  does  not  fall  within  the  power  conferred  upon 
the  President  to  grant  pardons.  But  taking  the  word  amnesty 
in  its  popular  sense  as  an  act  of  grace  extended  to  an  indeter- 
minate class  who  have  all  been  gnilty  of  a  common  offence, 
may  the  President  issue  an  amnesty  ? 

§  692.  The  English  law  divided  pardons  into  particular  and 
general.  The  ancient  text-writers  and  cases  constantly  refer 
to  this  division  as  one  existing  and  well  known.  Particular 
pardons  must  be  granted  to  determinate,  specified  criminals. 
General  pardons  had  a  double  meaning,  and  much  confusion 


THE   POWER   TO    GRANT   PARDONS.  463 

will  be  avoided  by  taking  notice  of  this  fact,  that  two  varieties 
were  embraced  in  this  species.  A  pardon  granted  to  an  indi- 
vidual, forgiving  him  for  all  crimes  whatever,  or  for  all  crimes 
of  a  certain  class,  which  he  had  before  committed,  was  called 
a  general  pardon.  An  act  of  grace  issued  to  a  class  of  indi- 
viduals who  had  been  engaged  in  a  common  offence,  without 
specifying  any  particular  persons  as  the  recipients  of  favor,  was 
also  known  as  a  general  pardon.  It  cannot  be  denied  that  the 
king  possessed  the  power  to  use  this  latter  variety  of  pardons, 
and  that  in  ancient  times  he  exercised  the  prerogative  with 
some  freedom.  Neither  can  it  be  denied  that  in  later  times 
the  Parliament  has  usually  extended  the  pardoning  grace  in 
such  cases  by  an  act  or  statute  of  indemnity,  and  that  the 
kingly  power  has  not  been  invoked.  Still  this  kind  of  general 
pardons,  whether  granted  by  the  crown  or  by  Parliament,  is 
well  known  and  recognized  in  the  English  law  ;  it  falls  under 
the  denomination  of  pardons  ;  and  it  is  epuivalent  to  an  act  of 
general  amnesty,  as  that  word  is  used  at  the  present  day. 

§  693.  I  am  strongly  inclined  to  the  opinion  that  the  Presi- 
dent is  clothed  with  a  constitutional  authority  to  issue  such  a 
general  pardon  to  a  class  of  persons  who  have  incurred  the 
penalties  of  the  law.  Applying  the  principle  firmly  estab- 
lished by  the  Supreme  Court,  that  the  power  to  grant  pardons 
includes  all  species,  it  would  seem  that  this  special  variety  was 
embraced  as  well  as  any  others.  This  conclusion  is  strength- 
ened when  we  consider  the  effect  of  such  an  act  of  grace.  Its 
intrinsic  nature  and  its  results  are  identical  with  those  of  a 
particular  pardon.  The  only  element  of  distinction  is  the 
vagueness  with  which  the  recipients  of  favor  are  described  ; 
but  this  uncertainty  can  always  be  removed,  if  necessary,  by 
evidence  identifying  the  person  as  one  of  the  class  mentioned 
in  the  terms  of  the  amnesty.  But  again,  in  proclaiming  a 
general  pardon,  the  President  is  doing  nothing  more  than  he 
may  confessedly  accomplish  by  pursuing  another  method 
which  is  entirely  under  his  control.  He  may  certainly  single 
out  all  the  persons  who  compose  the  class,  and  confer  a  sepa- 
-ate  pardon  upon  each.  As  soon  as  he  had  gone  through  the 
whole  number,  the  results  of  an  amnesty  would  have  been  at- 


464  GENERAL  AMNESTIES. 

taiiicd.  If  it  should  be  said  that  in  granting  a  pardon  to  a 
specified  individual  the  President  would  be  exercising  an 
amount  of  discretion,  that  he  would  be  governed  by  the  pecu- 
liar circumstances  of  the  individual  case  ;  I  answer,  as  a  fact 
this  is  doubtless  true,  but  as  a  prerequisite  to  a  legal  forgive- 
ness, it  is  not  true.  The  President  has  power  to  pardon  for  no 
cause,  as  well  as  for  good  cause.  His  exercise  of  the  function 
in  such  a  manner  might  expose  him  to  impeachment,  but  the 
act  itself  would  be  valid. 

§  694.  The  President's  power  to  issue  an  amnesty  lias  been 
denied,  because  the  Supreme  Court  of  the  United  States  de- 
cided in  United  States  v.  Wilson,1  that  a  pardon  issued  before 
conviction  must  be  pleaded  ;  and  it  is  urged  that  the  act  of 
grace  must  therefore  be  a  separate  deed  given  to  a  specified 
individual.  This  objection  is  certainly  without  weight.  It 
would  be  sufficient  to  say  that  the  Constitution  is  not  to  be 
construed  by  applying  to  it  the  ancient  common  law  rules  of 
pleading  in  criminal  cases.  But  the  decision  of  the  court  is 
entirely  misapprehended.  It  was  not  held  that  every  pardon 
granted  before  conviction  must  be  pleaded,  but  only  that  every 
pardon  conferred  upon  a  specified  individual  must  be  brought 
to  the  notice  of  the  court  as  a  fact,  and  that  anciently  this 
must  be  done  by  a  plea.  But  even  had  the  court  determined 
as  an  inflexible  rule  that  every  pardon  must  be  pleaded,  the 
inference  claimed  would  not  follow,  unless  the  further  rule  had 
been  laid  down  that  the  plea  must  be  accompanied  with  pro- 
fert.  Indeed,  in  this  case,  Chief  Justice  Marshall  was  simply 
conforming  to  a  familiar  practice  of  the  English  courts.  As  a 
pardon  is  not  a  general  law,  the  judges  cannot  take  cognizance 
of  its  existence  ;  it  must  be  brought  before  them  in  the  same 
manner  as  any  other  fact.  There  is  no  difference  in  this  re- 
spect between  a  particular  and  a  general  pardon  issued  by  the 
king  ;  each  must  be  pleaded,  when  it  is  relied  upon  as  a  de- 
fence, and  both  would  be  pleaded  with  the  same  ease  and  in 
the  same  manner.  But  if  the  act  of  grace  is  embodied  in  a 
general  statute  of  Parliament,  the  judges  take  cognizance 
thereof,  and  it  need  not  be  brought  to  their  notice  Ac 
1  7  Peters'  R.  150. 


THE  POWER  TO   GRANT  PARDONS.  465 

English  writer  of  authority  gives  the  following  rules  as  the 
result  of  ancient  cases.1  "  When  the  prisoner  has  either  per- 
sonally obtained  a  pardon,  or  is  included  in  a  general  act  of 
grace,  he  must  plead  that  privilege  specially.  But  when  Par- 
liament pardons  all  persons  without  any  description  of  their 
offences,  they  need  not  plead."  The  objection  I  am  consider- 
ing seems  therefore  to  fail  both  in  its  facts  and  in  its  infer- 
ences. 

§  695.  II.  The  Powers  of  Congress  over  Pardons.  —  Is  any- 
legislative  action  needed  to  aid  the  President,  or  can  any  legis- 
lative action  restrict  him,  in  the  exercise  of  his  function  ? 
Plainly  not.  Pardoning  is  clearly  a  kind  of  executing,  not  of 
making  laws.  As  far  as  authority  is  conferred  upon  the 
Chief  Magistrate,  it  can  neither  be  extended  nor  limited  by 
Congress.  A  statute  passed  to  give  construction  to  the  Con- 
stitution, and  to  confine  its  operation  to  particular  classes  of 
pardons,  would  be  a  palpable  usurpation  of  the  judicial  func- 
tion. Thus,  an  act  of  Congress  which  should  take  away  the 
President's  power  to  confer  conditional  pardons,  or  to  grant 
pardons  before  trial,  would  be  absolutely  void.  The  same 
would  be  true  of  a  law  wdiich  should  assume  to  restrain  him 
from  proclaiming  a  general  amnesty,  if  the  latter  is  included 
within  the  terms  of  the  Constitution. 

§  696.  Has  Congress  any  independent  authority  over  the 
subject  ?  None  is  conferred  in  express  language,  and  if  any 
exists,  it  must  be  implied  from  the  power  to  define  and  punish 
crimes.  The  legislature  may,  beyond  doubt,  relieve  existing 
offenders  from  the  penal  consequences  of  their  acts,  by  repeal- 
ing the  law  which  defined  the  crime  and  apportioned  the  pun- 
ishment. Thus  the  results  of  a  general  pardon  or  amnesty 
would  be  reached  in  an  indirect  manner.  But  while  the  stat- 
ute remains  in  force,  and  the  penalties  are  impending,  it 
would  seem  that  the  national  legislature  cannot  interpose  and 
extend  an  act  of  grace  either  to  a  specified  criminal,  or  to  an 
indeterminate  class.  The  general  grant  of  power  to  the  Pres- 
ident would  seem  to  cover  the  whole  case,  and  to  leave  no 
room  for  legislative  action.     Again,  a  pardon  is  confessedly  a 

1  1  Cbitty's  Cr.  Law,  466. 
30 


406  THE   POWER   TO   RECOMMEND   MEASURES. 

step  in  the  execution  of  laws,  and  the  American  Congress,  un- 
like the  British  Parliament,  has  no  executive  function.  It 
may  apportion  the  punishment;  it  may  make  that  punishment 
conditional  ;  but  when  it  has  once  decided  upon  the  penalty, 
its  authority  would  seem  to  be  ended.  Remission  is  a  proper 
act  of  the  President  and  not  of  the  legislature. 


SECTION  VI. 

THE    POWER    OF    THE    PRESIDENT    TO    GIVE    INFORMATION   AND   TO 
RECOMMEND   MEASURES    TO    CONGRESS. 

§  697.  "  He  shall  from  time  to  time  give  to  the  Congress 
information  of  the  state  of  the  Union,  and  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and 
expedient."  The  necessity  of  the  first  clause  is  apparent. 
By  virtue  of  his  official  position  the  President  becomes  ac- 
quainted with  a  vast  number  of  facts  which  are  most  important 
for  Congress  to  know,  but  which  that  body  possesses  no  means 
of  knowing  except  through  the  Executive.  Thus  the  items 
and  total  amount  of  the  revenue  and  of  the  expenditure,  upon 
which  so  much  of  the  economical  legislation  is  based  ;  the  situ- 
ation of  our  relations  with  foreign  countries  ;  the  number  and 
disposition  of  the  land  and  naval  forces  ;  the  character,  cost, 
and  condition  of  the  armaments  and  supplies, — these  and  a 
thousand  other  matters  of  detail  are  first  known  by  the  Execu- 
tive Department,  and  must  be  communicated  by  it  to  Congress, 
as  the  basis  of  the  annual  or  occasional  legislation. 

§  698.  From  the  very  organization  of  the  present  govern- 
ment the  practice  has  been  uniform  for  the  President  to  com- 
municate the  greater  part  of  this  information  in  a  message  sent 
to  Congress  at  the  opening  of  each  session.  This  message  is 
accompanied  by  a  full  and  minute  detail  of  the  various  opera- 
tions of  each  department  during  the  year.  The  President 
may  at  other  times  transmit  information  ;  and  the  Congress,  or 
either  House,  may  request  more  particular  statements  respect- 
ing any  matter  deemed  by  them  important.  When  a  demanc" 
is  made,  the  President  may,  and  often  does,  withhold  the  facts, 


THE    POWER   TO   RECOMMEND   MEASURES.  461 

if  in  his  opinion  their  communication  at  the  time  would  be  pre- 
judicial to  the  public  interests.  Congress  may  have  requested 
information  concerning  matters  over  which  they  have  no  direct 
legislative  power  ;  but  the  President  cannot  refuse,  on  that 
ground  alone,  to  make  the  statement.  It  would  be  almost,  if 
not  quite  impossible,  to  conceive  of  any  facts  respecting  the 
condition  of  the  nation,  which  could  not  in  some  manner  be 
made  useful  by  Congress  in  matters  entirely  within  its  juris- 
diction. Even  if  every  other  possible  reason  failed,  all  infor- 
mation must  be  useful,  as  it  would  affect  the  oversight  which 
the  House  of  Representatives  may  always  have  of  civil  officers, 
and  their  power  to  impeach  such  officers. 

§  699.  Thus,  during  the  late  civil  war,  the  two  houses  ap- 
pointed a  joint  committee  on  the  state  of  the  war,  which  col- 
lected a  vast  amount  of  evidence  respecting  the  various  military 
operations.  Now,  Congress  has  very  little  to  do,  in  any  direct 
manner,  with  the  conduct  of  war,  and  the  information  ob- 
tained could  not  be  used  as  the  basis  of  any  immediate  legisla- 
tion upon  military  movements.  But  the  knowledge  thus 
acquired  was  of  the  highest  value  as  an  aid  in  forming  correct 
conclusions  upon  the  all-important  subject  of  supplies.  Con- 
gress has  very  little  to  do  in  a  direct  way  with  the  manage- 
ment of  foreign  relations  ;  but  a  knowledge  of  those  relations 
may  be  absolutely  necessary  as  bearing  upon  the  question  of 
declaring  war,  or  of  raising  an  army  or  equipping  a  navy  in 
preparation  for  anticipated  hostilities.  In  conclusion,  all  in- 
formation on  all  possible  subjects  connected  with  the  welfare 
of  the  country,  may  be  useful  to  Congress,  and  may  be  de- 
manded by  them.  The  President  cannot  refuse  to  respond  on 
the  ground  that  the  facts  can  be  of  no  use  to  the  legislature  ; 
Congress,  not  he,  must  judge  of  their  value.  But  the  Presi- 
dent may  decline  to  communicate  at  the  time,  when  in  his 
judgment  the  public  welfare  requires  the  facts  to  be  kept  pri- 
vate ;  as  soon  as  the  necessity  for  such  concealment  is  past,  he 
must  respond  to  the  legislative  call. 

§  700.  The  second  clause  —  he  shall  recommend  to  the  con- 
sideration of  Congress  such  measures  as  he  shall  judge  neces- 
sary  and   expedient  —  seems    to    have   a   plain    and    definite 


468  THE   POWER   TO   RECOMMEND   MEASURES. 

meaning ;  and  the  power,  according  to  that  meaning,  is  reason- 
able and  just.  But  a  signification  has  been  given  to  it,  during 
a  large  part  of  our  political  history,  entirely  different  from  that 
which  must  have  been  contemplated  by  the  framers  of  the 
Constitution  ;  and  a  practice  has  grown  up  utterly  opposed  to 
the  spirit  of  the  organic  law.  The  President,  having  access  to 
information,  and  being  familiar  with  the  practical  working  of 
the  laws,  will  be  sure  to  perceive  the  occasions  for  amend- 
ments, additions,  repeals ;  in  short,  for  measures  which  he 
deems  necessary  or  expedient.  These  improvements  and  alter- 
ations he  may  recommend  to  Congress.  I  do  not  think  that  a 
fair  interpretation  of  the  clause  would  require  him  to  stop  with 
a  simple  suggestion  ;  he  may,  doubtless,  state  facts  and  use 
arguments  in  support  of  his  views  ;  may  endeavor,  to  the  best 
of  his  ability,  to  show  why  the  proposed  measure  is  necessary 
or  expedient.  So  much  is  plainly  embraced  in  the  word  rec- 
ommend. All  this  is  simple,  satisfactory,  in  strict  accordance 
not  only  with  the  letter  of  the  clause,  but  also  with  the  spirit 
of  the  whole  instrument.  The  President  uses  his  prior  official 
knowledge  ;  is  convinced  from  that  knowledge  that  certain 
measures  are  demanded  ;  proposes  those  measures  to  Congress 
with  whatever  of  argument  he  thinks  proper,  and  there  leaves 
the  matter.  He  has  discharged  his  duty,  and  the  responsibility 
is  now  with  the  law-making  power. 

§  701.  How  different  is  the  reality  from  this  picture.  How 
often  have  Presidents  and  their  cabinets  seemed  to  regard 
themselves  as  the  great  legislative  department,  and  the  Con- 
gress as  a  body  expected  to  receive  and  act  upon  their  views. 
Not  content  with  recommending  measures,  they  have  fre- 
quently set  themselves  at  work,  with  all  the  appliances  at  their 
command,  to  procure  those  measures  to  be  adopted,  as  though 
the  passage  of  certain  statutes  was  the  chief  object  of  their  ad- 
ministrations, and  the  chief  work  of  their  official  career.  The 
evil  is  not  a  recent  one  ;  it  had  its  origin  immediately  after  the 
'ime  of  those  Presidents  who  assisted  in  laying  the  foundations 
of  the  government,  but  it  has  developed  with  rapidity  in  recent 
years. 

§  702.  While  the  President  should  not  be  interfered  with  ic 


THE  POWER   TO    RECOMMEND   MEASURES.  169 

the  discharge  of  those  functions  which  are  committed  to  him 
by  the  organic  law,  the  legislature  should  be  left  no  less  free  to 
act  within  their  own  peculiar  sphere  and  range  of  duties  ;  the 
Chief  Magistrate  should  not  overstep  the  line  which  separates 
their  respective  domains.  The  Constitution  evidently  contem- 
plates the  Congress  as  the  great  legislative  body,  and  the 
President  as  the  great  executive  officer.  This  is  undoubtedly 
the  essential,  the  fundamental  idea  of  the  general  plan.  The 
organic  law  does,  indeed,  recognize  two  exceptions  to  the  uni- 
versality of  this  principle,  and  beyond  those  exceptions  neither 
Congress  nor  President  should  go.  One  exception  has  just 
been  stated.  The  other  exists  in  the  fact  that  the  President 
must  pass  upon  all  statutes,  and  approve  or  disapprove  ;  and 
that,  if  he  disapprove,  he  must  give  his  reasons  therefor.  This, 
as  I  have  before  shown,  makes  him  in  a  certain  sense  a  co- 
ordinate branch  of  the  legislature;  and  he  may,  therefore,  and 
indeed  must,  have  his  opinions  as  to  the  policy  of  enactments 
which  have  gone  through  the  Congress.  But  he  cannot  orig- 
inate  measures,  or  debate  them,  or  express  his  views  upon 
them,  except  when  he  disapproves  of  a  bill  presented  to  him, 
or  when  he  recommends  them  to  the  consideration  of  the 
legislature.  The  spirit  of  the  Constitution,  which  separates 
the  legislative  and  executive  functions,  is  departed  from  to  this 
extent,  and  no  more.  It  cannot  be  denied,  however,  that  the 
modern  practice  has  departed  from  that  spirit  much  farther, 
and  has  thereby  tended  to  destroy  one  of  the  principal  safe- 
guards of  every  free,  constitutional  government  —  the  inde- 
pendence of  the  Executive  and  Legislative  Departments.  The 
final  and  perfected  result  of  this  practice  would  be  the  accumu- 
lation of  all  governmental  power  in  the  hands  of  the  sole  execu- 
tive officer ;  Congress  would  be  virtually  driven  from  its  posi- 
tion as  an  independent,  co-ordinate  branch,  and  made  the  mere 
registrar  of  the  President's  informal  decrees.  This  gradual 
change  from  the  letter  and  spirit  of  the  organic  law,  and  the 
growing  tendency  to  treat  all  offices  as  mere  political  rewards, 
and  the  employment  of  the  appointing  power  as  a  means  of  in- 
fluencing legislation,  have  certainly  weakened  the  well-con- 
trived  system  of  checks   and  balances  which  ought  to  have 


£70  POWERS  OF  COMMANDER-IN-CHIEF. 

prevented  either  branch  of  the  government  from  usurping  the 
functions  of  any  other. 

SECTION   VII. 

THE    POWERS    OF    THE    PRESIDENT    AS    COMMANDER-IN-CHIEF. 

§  703.  "  The  President  shall  be  Commander-in-Chief  of 
the  army  and  navy  of  the  United  States,  and  of  the  militia  of 
the  United  States  when  called  into  the  active  service  of  the 
United  States."  In  this  connection  we  may  read  Article  I. 
Section  IX.  §  2  :  "  The  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when,  in  cases  of  rebellion  or 
invasion,  the  public  safety  may  require  it." 

The  President  is  thus  clothed  with  a  most  important  military 
function  :  he  is  to  command  the  forces  at  all  times,  Congress 
never  commands  them  ;  as  such  commander,  he  wages  war, 
Congress  never  wages  war.  We  must  endeavor,  however,  to 
ascertain  the  exact  limits  of  this  attribute,  and  to  distinguish  it 
from  the  ordinary  duty  of  executing  the  laws.  The  legisla- 
lature  alone  furnishes  the  occasions  upon  which  it  can  come 
into  play,  but  cannot  interfere  with  or  control  the  attribute 
itself.  Congress  raises  and  supplies  armies  and  navies,  and 
makes  rules  for  their  government,  and  there  its  power  and 
duty  end  ;  the  additional  power  of  the  President  as  supreme 
commander  is  independent  and  absolute.  Mr.  Chief  Justice 
Chase  very  clearly  and  correctly  expressed  this  general  prin- 
ciple in  Ex  parte  Milligan.1  He  said  :  "  The  power  to  make 
the  necessary  laws  is  in  Congress,  the  power  to  execute  in  the 
President.  Both  powers  imply  many  subordinate  and  auxil- 
iary powers.  Each  includes  all  authorities  essential  to  its  due 
exercise.  But  neither  can  the  President  in  war  more  than  in 
peace,  intrude  upon  the  proper  authority  of  Congress,  nor 
Congress  upon  the  proper  authority  of  the  President.  Both 
are  servants  of  the  people  whose  will  is  expressed  in  the  funda- 
mental law."  The  legislative  powers  which  relate  to  the  rais- 
ing, equipping,  supplying,  and  governing  the  land  and  naval 
forces,  have  nothing  in  common  with  the  separate  and  distinct 

1  4  Wallace's  R.  2,  139. 


POWERS  OF  COMMANDER-IN-CHIEF.  471 

function  of  commanding  those  forces ;  no  particular  statutes 
passed  under  the  former  class  of  attributes,  can  interfere  with 
the  President  in  his  exercise  of  the  latter.  Even  the  general 
clause  of  Article  I.  Section  VIII.  §  18,  which  authorizes 
Congress  to  make  all  laws  necessary  and  proper  to  carry  into 
execution  the  powers  conferred  upon  any  department  of  the 
government,  cannot  permit  the  Congress  to  assume  the  capac- 
ities and  duties  of  Commander-in-Chief. 

§  704.  In  fact,  the  attributes  of  the  legislature  in  respect  to 
military  matters,  are  essentially  the  same  in  peace  and  in  war. 
The  power  to  make  rules  for  the  disposition  of  captures  becomes 
practically  efficient  in  every  war ;  that  to  suspend  the  privilege 
of  the  writ  of  habeas  corpus  can  exist  only  during  an  internal 
war.  With  these  exceptions,  Congress  possesses  all  the  occa- 
sions for  its  action,  and  may  pass  all  kinds  and  classes  of  laws, 
whether  the  country  be  at  peace  or  engaged  in  war.  Without 
doubt  there  will  be  a  greater  necessity  for  raising  troops,  bor- 
rowing money,  furnishing  supplies,  and  the  like,  during  the 
existence  of  actual  hostilities  than  during  seasons  of  tranquil- 
lity ;  and  the  people  will  then  endure  particular  measures  which 
they  would  not  tolerate  for  a  moment  at  a  time  when  the 
emergency  was  not  so  great.  But  no  authority  can  generally 
arise  from  a  state  of  belligerency,  for  Congress  to  pass  entirely 
new  classes  of  statutes  which  it  could  not  constitutionally  enact 
before.  Even  the  rules  for  the  disposition  of  captures  could 
all  be  elaborated  before  any  hostilities  commenced,  and  before 
any  captures  were  actually  made. 

§  705.  In  time  of  peace,  therefore,  the  President's  func- 
tions, as  far  as  they  relate  to  the  army  and  navy,  are  of  two 
separate  and  entirely  distinct  characters,  and  to  avoid  confu- 
sion we  must  carefully  distinguish  between  these  attributes. 
In  respect  to  certain  classes  of  measures  he  acts  entirely  in  his 
general  capacity  of  Executive,  and  takes  care  that  the  laws 
are  faithfully  executed.  Congress,  under  its  supreme  author- 
ity, passes  laws  which  concern  the  military  alone,  and  these 
the  President  must  enforce  with  the  same  diligence,  and  by 
rirtue  of  the  same  function,  that  he  carries  out  those  legislative 
mandates  which  apply  alone  to  civilians ;  he  is  not  then  oper- 


172  POWERS  OF  COMMANDER-IN-CHIEF. 

ating  as  commander,  but  as  a  supreme  civil  magistrate.  But 
as  Commander-in-Chief,  he  calls  other  attributes  into  action, 
for  whieh  the  legislature  lias  furnished  the  occasion,  hut  which 
do  not  consist  in  executing  any  positive  laws.  I  repeat,  it  is 
important  that  these  two  classes  of  powers  and  duties  should 
be  kept  distinct.  Under  its  authority  to  raise  armies,  main- 
tain navies,  furnish  supplies,  and  the  like,  Congress  may  direct 
the  manner  in  which  the  President's  power  shall  be  exercised, 
for  he  will  be,  in  fact,  but  executing  its  commands.  Thus  it 
may  determine  how  many  men  shall  be  enlisted  in  each  branch 
of  the  service,  or  what  and  how  many  armed  vessels  shall  be 
constructed.  As  Congress  is  to  make  all  appropriations,  it 
may  declare  the  specific  purpose  for  which  money  is  to  be 
used  ;  what  forts  shall  be  erected,  and  their  cost ;  what  ships 
built,  their  character  and  cost ;  what  kind  of  arms  purchased 
or  manufactured,  and  the  cost.  Instances  of  this  sort  might 
be  multiplied.  In  all  these  cases  great  or  little  discretion  may 
be  left  to  the  Executive  and  his  subordinates,  as  the  legislature 
deems  best.  Congress  is  authorized  to  make  rules  for  the 
government  of  the  land  and  naval  forces :  it  may  therefore 
arrange  and  classify  these  forces  ;  fix  upon  the  plan  of  organi- 
zation ;  determine  upon  the  number,  duties,  and  pay  of  officers  ; 
define  military  offences  and  allot  the  punishment;  provide  for 
the  creation,  jurisdiction,  and  procedure  of  courts-martial,  and 
for  carrying  out  their  sentences.  The  President's  duties  in 
respect  to  these  various  subjects  may  thus  be  clearly  defined 
find  controlled  by  the  legislature.  But  in  time  of  peace  he  has 
an  independent  function.  He  commands  the  army  and  navy  ; 
Congress  does  not.  He  may  make  all  dispositions  of  troops 
and  officers,  stationing  them  now  at  this  post,  now  at  that ;  he 
may  send  out  naval  vessels  to  such  parts  of  the  world  as  he 
pleases  ;  he  may  distribute  the  arms,  ammunition,  and  supplies 
in  such  quantities  and  at  such  arsenals  and  depositories  as  he 
deems  best.  All  this  is  a  work  of  ordinary  routine  in  time  of 
peace,  and  is  probably  left  in  fact  to  the  Secretaries  of  War 
and  of  the  Navy,  and  to  military  officers  high  in  command. 

§   706.    When    actual    hostilities  have   commenced,    either 
through  a  formal  declaration  made  by  Congress,  or  a  belliger 


POWERS  OS  COMMANDER-IN-CHIEF.  473 

ent  attack  made  by  a  foreign  government  which  the  President 
must  repel  by  force,  another  branch  of  his  function  as  Com- 
mander-in-Chief comes  into  phiy.  He  wages  war,  Congress 
does  not.  The  legislature  may,  it  is  true,  control  the  course 
of  hostilities  in  an  indirect  manner,  for  it  must  bestow  all  the 
military  means  and  instruments  ;  but  it  cannot  interfere  in  any 
direct  manner  with  the  actual  belligerent  operations.  Wher- 
ever be  the  theatre  of  the  warlike  movements,  whether  at 
home  or  abroad,  whether  on  land  or  on  the  sea,  whether  there 
be  an  invasion  or  a  rebellion,  the  President  as  Commander-in- 
Chief  must  conduct  those  movements  ;  he  possesses  the  sole 
authority  and  is  clothed  with  the  sole  responsibility.  In 
theory  he  plans  all  campaigns,  establishes  all  blockades  and 
sieges,  directs  all  marches,  fights  all  battles. 

§  707.  We  will  now  inquire  what  particular  powers  may  be 
wielded  by  the  government,  or  by  some  department  thereof, 
in  time  of  war,  which  cannot  be  exercised  in  time  of  peace. 
Article  I.  Section  IX.  §  2  is  in  these  words  :  "  The  privilege 
of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless 
when,  in  cases  of  rebellion  or  invasion  the  public  safety  may 
require  it."  It  has  been  asserted  that  this  clause  confers  no 
authority  to  suspend  the  privilege  of  the  writ  of  habeas  corpus 
and  that  it  is  entirely  restrictive  in  its  meaning  and  operation. 
This  construction  is  arbitrary  and  forced  to  the  last  degree. 
The  plain  import  of  the  language,  which  has  been  adopted  by 
Congress,  the  President,  and  the  Courts,  is  that  in  an  internal 
war,  whether  of  invasion  by  a  foreign  enemy  or  of  rebellion, 
the  privilege  of  the  writ  of  habeas  corpus  may  be  suspended 
when  the  public  safety  shall  demand  such  an  extreme  measure. 
The  power  to  suspend  being  thus  conceded,  the  practical 
question  then  arises,  to  which  department  of  the  government  is 
its  exercise  intrusted.  The  venerable  Horace  Binney,  in  two 
essays  published  in  the  years  1862,  1863,  has,  with  a  vast 
amount  of  research  and  learning,  and  by  a  course  of  argu 
ment  from  which  it  is  difficult  to  escape,  maintained  the  pro 
positions  that  suspending  the  privilege  of  the  writ  of  habeas 
corpus  is  a  civil  executive  act ;  that  the  power  to  suspend 
Delongs  to  the    President    in  his  civil  capacity  ;  and  that  no 


174         SUSPENSION   OF  THE  WHIT  OF  HABEAS  CORPUS." 

fiat  of  the  legislature  is  necessary  in  order  to  make  the  act 
legal.  The  opinion  is  almost  universal,  however,  that  Con- 
gress  must  take  the  initiative,  and  pass  a  statute  which  either 
directly  produces  the  effect  of  suspension,  or  which  authorizes 
the  President  to  withdraw  the  privilege  of  the  writ.  Con- 
gress has  adopted  this  view,  and  their  action  seems  to  have 
been  sanctioned  by  the  Supreme  Court. 

§  708.  Assuming,  therefore,  that  during  a  rebellion  or  an 
invasion,  the  Congress  may,  if  the  public  safety  shall  require  it, 
suspend,  or  authorize  to  be  suspended,  the  privilege  of  the 
writ  of  habeas  corpus,  the  most  important  inquiry  is  immedi- 
ately suggested,  What  is  included  within  this  proceeding? 
what  particular  measures  may  the  legislature  or  the  executive 
adopt  by  virtue  thereof?  Is  the  clause  in  the  Constitution  a 
permission  for  Congress  or  President  to  disregard,  during  the 
contemplated  emergency,  all  those  safeguards  which  the  Bill 
of  Rights  has  thrown  around  life,  liberty,  and  property  ?  If 
this  be  so,  a  power  most  dangerous,  and  directly  opposed  to 
the  general  spirit  of  the  organic  law,  was  conferred  by  lan- 
guage which  effectually  concealed  the  greatness  of  the  gift. 
We  cannot  suppose  that  the  statesmen  who  drafted  or  the 
people  who  accepted  the  Constitution,  intended  to  grant  such 
an  authority  to  their  rulers.  Horace  Binney,  in  a  third  essay 
upon  this  subject,  has  investigated  the  meaning  and  extent  of 
the  power,  and  has  shown  the  limits  of  its  operation,  by  an 
argument  which  amounts  to  an  absolute  demonstration.1  His 
conclusions  I  adopt  and  briefly  state  without  any  reference  to 
the  sources  and  precedents  whence  they  are  drawn.  Suspen- 
sion of  the  privilege  of  the  writ  of  habeas  corpus,  or  of  the 
writ,  or  of  the  Habeas  Corpus  Act  —  three  expressions  for  the 
same  thino; —  had  a  settled  and  well  known  meaning  in  the 
English  law,  with  which  the  framers  of  the  Constitution  are 
to  be  taken  as  familiar.  It  "  did  not  recall  to  any  one  any 
other  legal  power,  proceeding,  or  effect,  than  that  of  arresting 
persons  suspected  of  treasonable  designs,  committing  them  tc 
prison,  and  uplifting  beyond  their  reach  the  writ  of  habeas 
"orpus  as  a  means  of  relief."  That  which  the  British  govern- 
i  The  Privilege  of  the  Writ  of  Habeas  Corpus  :  Part  Third,  Phila.  1865. 


SUSPENSION   OF  THE  WRIT  OF  HABEAS  CORPUS.       175 

ment  can  do  without  any  limitations,  the  Constitution  permits 
to  be  done  only  under  the  conditions  of  invasion  or  rebellion. 
The  suspension  of  the  writ  does  not  in  the  least  affect  the 
authority  over  arrests ;  the  power  to  suspend  does  not  enable 
Congress  to  allow  or  the  Executive  to  make  arrests  without  le- 
gal  cause,  or  in  an  arbitrary  and  irregular  manner ;  but  merely 
enables  the  government  to  detain  a  prisoner  arrested  for  good 
cause,  for  an  indefinite  time  without  trial  or  bail.  Suspend- 
ing the  writ  does  not  legalize  seizures  otherwise  arbitrary,  nor 
give  any  greater  authority  to  the  Executive  than  that  of  de- 
taining suspected  persons  in  custody  whom  it  would  else  be 
obliged  to  bring  to  a  speedy  trial  or  to  release  on  bail.  These 
conclusions  as  to  the  power  of  Congress  and  the  President 
derived  from  the  habeas  corpus  clause  of  Article  I.,  Section 
IX.,  reached  by  Mr.  Binney  through  his  masterly  analysis  of 
English  precedents,  have  received  the  approval  of  the  Supreme 
Court  of  the  United  States ;  in  fact  they  were  adopted  as  the 
very  ground  of  deciding  one  branch  of  the  great  case  Ex 
parte  Milligan.1  Mr.  Justice  Davis  delivering  the  judgment 
of  the  court  said :  "  The  suspension  of  the  writ  does  not 
authorize  the  arrest  of  any  one,  but  simply  denies  to  one 
arrested  the  privilege  of  this  writ  in  order  to  obtain  his 
liberty."  In  a  word,  Congress  and  President  derive  no  new 
affirmative  power  from  the  habeas  corpus  clause,  but  only  a 
negative  power  of  passive  resistance. 

§  709.  But  may  not  the  President  or  Congress  derive  some 
additional  powers  during  war,  from  a  source  entirely  independ- 
ent of  the  habeas  corpus  clause  ?  Do  the  express  prohibitions 
of  the  Constitution  still  restrain  them  when  operating  with  the 
military  arm  ?  One  answer  to  these  inquiries  is  plain  ;  its  cor- 
rectness must  be  acknowledged  at  once.  If  either  the  Presi- 
dent or  Congress  may  thus  acquire  an  excess  of  powers  dur- 
ing war,  it  must  necessarily  be  by  virtue  of  some  special 
function  given  by  the  Constitution,  which  becomes  active  only 
at  that  time,  and  whose  nature  is  so  peculiar  that  its  perfect 
efficiency  is  incompatible  with  any  express  restraints  upon  its 
3peration  ;  this  incompatibility  must  be  so  great  and  the  func- 
1  4  Wallace's  R.  2,  llo. 


i76  MARTIAL   LAW. 

tion  itself  so  important,  that  an  exception  in  regard  to  it  is  to 
be   considered   as  necessarily   implied   in   the   Bill   of  Rights 
Does  any  department  of  the  government  possess  such  a  func- 
tion which  may  at  times  displace  some  of  the  safeguards  that 
protect  life,  liberty,  and  property? 

§  710.  I  answer  unhesitatingly,  Congress  does  not.  The 
position  maintained  by  Mr.  Chief  Justice  Chase  and  other 
dissenting  judges  in  Ex  parte  Milligan,1  that  Congress  may, 
under  certain  circumstances,  provide  for  martial  law,  military 
arrests  and  trials  of  civilians,  seems  to  be  the  most  utterly 
indefensible  of  any.  It  is  universally  conceded  that  the  legis- 
lature cannot  resort  to  these  violent  measures  in  peace.  But 
in  fact,  Congress  possesses  no  function  whatever  that  can  be 
taken  as  the  basis  of  its  authority  to  enforce  martial  law  in 
war,  which  would  not  be  an  equally  strong  support  for  the 
exercise  of  that  authority  in  peace.  Is  it  the  function  of 
establishing  inferior  courts,  or  of  raising  armies  and  navies,  or 
of  governing  the  forces  ?  All  these  might  be  called  into  full 
action  in  time  of  peace.  The  power  to  make  rules  concerning 
captures  plainly  does  not  involve  the  consequences  under  con- 
sideration, while  that  of  declaring  war  is  exhausted  by  the 
very  act  of  declaration.  Indeed,  it  is  only  by  imputing  to 
Congress  an  attribute  not  granted  to  it —  that  of  waging  war 
—  that  its  authority  to  enforce  martial  law  can  receive  even  a 
semblance  of  support. 

§  711.  Is  the  President  clothed  with  the  function  ?  If  so, 
it  cannot  be  in  his  capacity  of  executive  magistrate,  for  as 
such  he  must  execute  laws,  and  he,  to  an  equal  extent  with 
the  law-makers,  is  bound  by  the  inhibitions  of  the  first  eight 
Amendments.  If  the  President  may  resort  to  martial  law 
under  any  circumstances,  it  cannot  be  as  a  part  of  either  the 
judicial  or  the  legislative  systems  of  the  United  States,  but 
must  be  as  a  special  means  of  waging  war,  of  carrying  out  the 
particular  duties  which  devolve  upon  him  as  Commander-in- 
Chief.  If  military  arrests,  trials,  and  punishments  employed 
against  civilians  are  ever  lawful,  they  are  so  not  because  they 
»re  a  kind  of  judicial  proceeding  supplementing  the  ordinary 
1  Wallace's  R.  2. 


MARTIAL  LAW.  477 

methods  of  peace,  but  because  they  are  a  species  of  hostilities 
directed  against  individuals  who  have  placed  themselves  in  the 
position  of  enemies,  and  have  therefore  deprived  themselves  of 
all  the  safeguards  which  the  Constitution  throws  about  the 
lives,  liberty  and  property  of  citizens. 

§  712.  Does  such  a  power  exist?  There  are  three  subjects 
bearing  related  names,  but  havins  no  elements  in  common, 
and  care  should  be  taken  to  distinguish  them.  "  Military 
Law  "  is  the  code  of  rules  for  the  government  of  the  army 
and  navy  ;  it  is  a  department  of  the  municipal  law  applicable 
to  a  small  portion  of  the  people  engaged  in  a  special  service  ; 
it  is  enacted  by  Congress  and  executed  by  the  President ; 
civilians  are,  by  the  very  terms  of  the  Constitution,  exempted 
from  its  operation.  "  Military  Government'''  is  the  authority 
by  which  a  commander  governs  a  conquered  district,  when  the 
local  institutions  have  been  overthrown,  and  the  local  rulers 
displaced,  and  before  Congress  has  had  an  opportunity  to  act 
under  its  power  to  dispose  of  captures,  or  to  govern  territories. 
This  authority  in  fact  belongs  to  the  President  ;  and  it  assumes 
the  war  to  be  still  raging,  and  the  final  status  of  the  conquered 
province  to  be  undetermined,  so  that  the  apparent  exercise  of 
civil  functions  is  really  a  measure  of  hostility.  "  Martial 
Law  "  is  something  very  different.  It  acts,  if  at  all,  within 
the  limits  of  the  country,  against  civilians  who  have  not 
openly  enrolled  themselves  as  belligerents  among  the  forces  of 
an  invading,  or  a  rebellious  enemy  ;  if  set  in  motion  at  all,  it 
must  be  as  a  concomitant  of  war.  It  is  thus  described  by  a 
late  writer  i1  "  Martial  Law  is,  in  short,  the  suspension  of  all 
law  but  the  will  of  the  military  commanders  entrusted  with 
its  execution,  to  be  exercised  according  to  their  judgment,  the 
exigencies  of  the  moment,  and  the  usages  of  the  service,  with 
no  fixed  or  settled  rules  or  laws,  no  definite  practice,  and  not 
bound  even  by  the  rules  of  the  military  law."  If  this 
description  bears  any  resemblance  to  the  fact,  every  American 
citizen  must  hope  that  neither  President  nor  Congress  can  set 
such  an  engine  of  abuse  and  oppression  at  work  within  the 
vamits  of  the  United  States. 

1  Finlason  on  Mar.  Law,  p.  107 


178  .MARTIAL  LAW. 

§  713.  A  most  elaborate  and  exhaustive  examination  01  the 
power  to  enforce  martial  law  in  Great  Britain  was  lately  made 
by  Lord  Chief  Justice  Cockburn.1  After  a  review  of  the 
precedents  ancient  ami  modern,  set  forth  in  the  wonderfully 
clear  and  orderly  manner  for  which  he  is  so  preeminently  dis- 
tinguished, the  Chief  Justice  reaches  the  conclusion  that  the 
Crown  has  no  authority  by  virtue  of  its  prerogative  to  enforce 
martial  law  in  any  part  of  the  realm  where  the  laws  of  Eng- 
land prevail ;  but  admits  that  Parliament  may  call  it  into 
being  and  operation.  A  solemn  judgment  of  the  Supreme 
Court  in  Ex  parte  Milligan2  has  denied  the  lawfulness  of  mar- 
tial law  within  the  United  States,  except  in  districts  actually 
occupied  by  the  opposing  forces,  which  are  the  very  theatre 
of  hostilities,  and  in  which  the  civil  courts  are,  for  the  time 
being,  completely  displaced.  The  extent  of  this  exception  will 
appear  in  the  following  extract  from  the  prevailing  opinion  :3 
"  It  follows  from  what  has  been  said  on  this  subject,  that  there 
are  occasions  when  martial  rule  can  properly  be  applied.  If, 
in  foreign  invasion  or  civil  war,  the  courts  are  actually  closed, 
and  it  is  impossible  to  administer  criminal  justice  according  to 
law,  then,  on  the  theatre  of  active  military  operations,  where 
war  really  prevails,  there  is  a  necessity  to  furnish  a  substitute 
for  the  civil  authority  thus  overthrown,  to  preserve  the  safety 
of  the  army  and  society  ;  and  as  no  power  is  left  but  the  mili- 
tary, it  is  allowed  to  govern  by  martial  rule  until  the  laws  can 
have  their  free  course.  As  necessity  creates  the  rule,  so  it 
limits  its  duration  ;  for  if  this  government  is  continued  alter 
the  courts  are  reinstated,  it  is  a  gross  usurpation  of  power. 
Martial  rule  can  never  exist  where  the  courts  are  open  and  in 
the  proper  and  unobstructed  exercise  of  their  jurisdiction." 

§  714.  These  sweeping  conclusions  of  the  Supreme  Court 
seem  to  be  open  to  some  criticism.  Mr.  Justice  Davis  in  the 
passage  quoted,  seems  to  have  confounded  martial  law  with 
military  government,  and  to  have  overlooked  the  fact  that 
martial  law  is  not  in  any  true  sense  a  judicial  proceeding,  or 

1  Charge  of  the  Lord  Chief  Justice  of  England,  in  the  case  of  th« 
^ueen  v.  Nelson  and  Brand.     London,  1867. 

2  4  Wallace's  R.  2.  3  Ibid.  127. 


MARTIAL   LAW.  47(J 

a  means  of  executing  the  civil  laws,  but  is  a  method  of  waging 
war.  It  may  be  conceded  that  the  President  has  no  authority 
to  declare  or  proclaim  martial  law,  and  make  it  general  in 
a  district  where  the  courts  are  open  and  unobstructed  ;  Con- 
gress certainly  has  none.  But  the  President,  as  Commander- 
in-Chief,  wages  war ;  the  sole  object  of  his  hostile  endeavors 
is  success.  In  respect  to  some  of  his  operations  he  is  cer- 
tainly  untrammelled  by  the  restraining  clauses  of  the  Bill  of 
Rights.  In  an  internal  war  of  rebellion  the  enemies  are  citi- 
zens and  traitors,  and  thus  guilty  of  civil  offences  ;  but  he 
may  kill  or  capture  them,  or  seize  and  destroy  their  property, 
and  thus  break  up  their  armed  opposition.  The  possibility  of 
civil  war  therefore  demands  at  least  one  implied  exception  to 
the  general  clauses  of  the  first  eight  amendments.  May  it 
not  admit  of  others  ?  One  other  is  universally  conceded.  A 
citizen  civilian,  in  no  way  connected  with  the  hostile  array  as 
a  belligerent,  who  should  act  as  a  spy  upon  the  military  move- 
ments, operations,  and  preparations,  may  be  seized,  tried,  and 
punished  by  military  agents.  The  explanation  of  this  ac- 
knowledged rule  is  simple  and  plain.  A  spy  interferes  directly 
with  the  process  of  waging  war ;  he  perils  the  success  of  ex 
tensive  campaigns  ;  he  renders  the  final  result  of  the  struggle 
doubtful ;  he  is  in  fact  acting  as  an  enemy,  may  be  treated  as 
an  enemy,  and  as  an  enemy  forfeits  all  civil  protection,  even 
though  his  offence  might  also  be  considered  as  treason.  This 
illustration  may  serve  to  indicate  the  occasions  upon  which  the 
President  may  resort  to  martial  law,  and  the  limits  upon  its 
exercise  by  him.  Whenever  a  civilian  citizen  or  alien  is 
engaged  in  practices  which  directly  interfere  with  waging 
war,  which  directly  affect  military  movements  and  operations, 
and  thus  directly  tend  to  hinder  or  destroy  their  successful 
result,  and  when,  therefore,  these  practices  are  something 
more  than  mere  seditious  or  traitorous  designs  or  attempts 
against  the  existing  civil  government,  the  President  as  Com- 
mander-in-Chief may  treat  this  person  as  an  enemy,  and 
rause  him  to  be  arrested,  tried,  and  punished  in  a  military 
manner,  although  the  civil  courts  are  open,  and  although  his 


480  IMPEACHMENT. 

offence  m  iv  be  sedition  or  treason,  or  perhaps  may  not  be  re- 
cognized  as  a  crime  by  the  civil  code. 

I  am  aware  that  such  a  person  would  not  technically  be  an 
enemy,  and  if  arrested  would  not  technically  be  a  prisoner  of 
war;  but  he  would  he  a  quasi-enemy,  and  would  have  placed 
himself  beyond  the  pale  of  civil  protection.  If  these  views 
are  correct,  it  follows  that  the  legality  of  every  military  arrest, 
trial,  and  punishment  must  be  determined  upon  its  own  cir- 
cumstances, and  not  according  to  any  general  and  inflexible 
rules.  In  fact,  these  proceedings  would  be  placed  upon 
exactly  the  same  footing  as  those  other  apparent  breaches  of 
the  Bill  of  Rights  which  consist  in  destroying  the  private 
property  of  civilians,  or  appropriating  it  to  use,  when  military 
exigencies  demand  such  measures.1 


SECTION  VIII. 

IMPEACHMENT. 

§  715.  The  clauses  of  the  Constitution  which  directly  refer 
to  Impeachment  are  the  following:  "The  House  of  Repre- 
sentatives shall  have  the  sole  power  of  impeachment."  Art. 
I.  Sec.  II.  §  5.  "  The  Senate  shall  have  the  sole  power  to 
try  all  impeachments  ;  when  sitting  for  that  purpose  they  shall 
be  on  oath  or  affirmation.  "When  the  President  of  the  United 
States  is  tried,  the  Chief  Justice  shall  preside,  and  no  person 
shall  be  convicted  without  the  concurrence  of  two  thirds  of 
the  members  present.  Judgment  in  cases  of  impeachment 
shall  not  extend  further  than  to  removal  from  office,  and  dis- 
qualification to  hold  and  enjoy  any  office  of  honor,  trust,  or 
profit  under  the  United  States,  but  the  party  convicted  shall, 
nevertheless,  be  liable  and  subject  to  indictment,  trial,  judg- 
ment, and  punishment  according  to  law."  Art.  I.  Sec.  III.  §^ 
6  and  7.  "  The  President  and  Vice-President  and  all  civil 
officers  of  the  United  States  shall  be  removed  from  office  on 
impeachment  for,  and  conviction  of,  treason,  bribery,  and  other 
high  crimes  and  misdemeanors."  Art.  II.  Sec.  IV.  The  nn- 
1  See  §  254-256. 


IMPEACHMENT.  431 

portant  questions  which  arise  from  these  provisions  are :  (1.) 
Who  may  be  impeached.  (2.)  What  are  the  legal  grounds  of  an 
impeachment.  (3.)  What  punishment  may  be  inflicted.  In 
respect  to  the  second  of  these  questions,  there  is  a  direct 
opposition  of  opinion  among  public  writers  and  statesmen,  and 
no  conclusion  has  been  reached  with  so  much  certainty  that  it 
may  be  considered  as  incorporated  into  the  constitutional  law. 
I  can  do  no  more,  therefore,  than  state  the  positions  which 
have  been  maintained,  the  arguments  in  their  support,  and 
my  own  preferences.  All  that  is  said  must  be,  to  a  certain 
extent,  speculative. 

§  716.  (1.)  Wlio  may  he  Impeached.  The  language  of  the 
Constitution  plainly  excludes  all  private  persons,  and  all  offi- 
cers in  the  land  and  naval  forces  ;  does  it  include  all  individu- 
als holding  an  official  position  under  the  United  States,  whose 
duties  are  civil  in  their  nature  as  opposed  to  military  ?  In  1797, 
upon  the  trial  of  an  impeachment  preferred  against  William 
Blount,  a  Senator,  the  Senate  decided  that  members  of  their 
own  body  are  not  "  civil  officers  "  within  the  meaning  of  the 
Constitution,  and  therefore  dismissed  the  charges  without  any 
examination  upon  the  merits.  This  rule  must  apply  also  to 
members  of  the  Lower  House ;  and,  as  far  as  the  precedent 
can  be  considered  an  authority,  it  may  be  regarded  as  settled 
that  Senators  and  Representatives  are  not  impeachable.  The 
term  "  civil  officers  "  embraces,  therefore,  the  judges  of  the 
United  States  courts,  and  all  subordinates  in  the  Executive 
department.  This  construction  which  includes  the  judiciary 
and  excludes  the  legislature,  is,  to  say  the  least,  somewhat 
strained.  The  discretion  given  to  legislators  is  and  must  be 
very  great ;  no  limits  can  be  placed  upon  its  ordinary  use 
within  constitutional  bounds ;  but  its  unlawful,  corrupt,  or 
heedless  exercise  should  be  restrained  by  some  compulsive 
sanction.  The  law-makers  may  be  guilty  of  treason,  bribery, 
or  other  official  acts  to  which  the  term  "  high  crimes  and  mis- 
demeanors  "  is  applied  ;  the  consequences  of  their  guilt  may 
be  ruinous ;  every  consideration  in  favor  of  subjecting  Presi- 
dent or  judges  to'  the  liability  of  an  impeachment,  Avould  seem 

to  apply  with  equal  force  to  them.     It  is  true  that  Senators 
31 


482  GROUNDS   OF  AN  IMPEACHMENT. 

and  Representatives  may  be  expelled  by  the  body  to  which 
they  belong,  but  this  punishment  is  plainly  inadequate  ;  ex- 
pulsion removes  from  the  present  office,  but  is  no  obstacle  to  a 
reelection  thereto,  nor  does  it  disqualify  from  holding  any  other 
position  of  honor,  trust,  or  profit.  Should  the  House  of  Rep- 
resentatives and  the  Senate  ever  be  called  upon  to  reexamine 
the  rule  adopted  in  the  case  of  William  Blount,  they  may, 
perhaps,  reject  the  authority  of  that  single  precedent. 

§717.  (2.)  WJiat  are  the  lawful  grounds  of an  Impeachment. 
Two  answers  have  been  given  to  this  question,  resting  upon 
two  opposed  theories  of  construction.  One  theory,  maintained 
with  great  ability,  both  upon  principle  and  authority,  by  a 
large  school  of  public  writers,  confines  the  operation  of  the 
impeachment  clauses  within  very  narrow  limits.  According 
to  it,  an  impeachment  can  only  be  preferred  against  an  officer 
of  the  United  States,  on  account  of  some  indictable  oifence 
which  he  has  committed.  Assuming  this  general  doctrine  to 
be  correct,  and  taking  into  account  the  further  special  rule 
that  all  crimes  against  the  United  States  must  be  statutory,  the 
final  conclusion  is  reached  that  the  officer  must  have  been 
guilty  of  an  offence  which  had  been  made  indictable  by  a 
positive  law  of  Congress.  This  law  must  have  been  passed 
prior  to  the  commission  of  the  criminal  act,  because  a  statute 
subsequent  thereto  declaring  the  act  penal,  and  imposing  a  pun- 
ishment, would  be  an  ex  post  facto  law,  and  obnoxious  to  ex- 
press inhibitions  of  the  Constitution. 

§  718.  The  course  of  reasoning  which  supports  the  theory 
and  leads  to  this  result,  consists  of  two  branches.  The  first 
branch  of  the  argument  is  not  based  upon  any  peculiar  phrase- 
ology of  the  Constitution,  but  upon  the  general  nature  of  im- 
peachment as  a  method  of  criminal  procedure  known  to  the 
English  law.  It  may  be  condensed  as  follows :  The  House 
of  Representatives  have  the  same  powers  to  present,  and  the 
Senate  to  try,  an  offender,  that  are  held  by  the  British  Com- 
mons and  Lords,  —  these  and  no  greater  attributes  are  con- 
ferred in  the  word  "  impeachment ;  "  it  is  settled  in  England 
,hat  an  impeachment  is  only  regular  and  lawful  as  a  mode  of 
presenting,  trying,  and  convicting  for  an  indictable  offence 


IMPEACHMENT.  483 

the  two  houses  of  Congress  are  therefore  limited  in  the  same 
manner  ;  finally,  as  there  are  no  common  law  crimes  against 
the  United  States,  but  only  those  created  and  defined  by  some 
statute  of  Congress,  the  President,  Vice-President,  and  all 
civil  officers  can  only  be  impeached  on  account  of  some  act 
which  had  been  declared  an  indictable  offence  by  a  positive 
law  of  the  national  legislature. 

The  second  branch  of  the  argument  is  based  upon  the  pecu- 
liar phraseology  of  the  Constitution.  It  may  be  condensed  as 
follows  :  Officers  can  be  impeached  only  for  "  treason,  bri- 
bery, and  other  high  crimes  and  misdemeanors  ;  "  the  phrase 
"  high  crimes  and  misdemeanors  "  is  to  be  taken  in  a  strict 
technical  sense,  and  is  equivalent  to  "  felonies  "  and  "  misde 
meanors,"  which  are  words  of  art  embracing  all  indictable 
offences  and  no  more  ;  therefore  the  ground  of  an  impeach 
ment  must  be  an  act  which  Congress  had  made  a  "  felony  "  or 
a  "  misdemeanor  "  in  its  positive  criminal  code.1 

§  719.  The  second  theory  does  not  confine  the  House  of 
Representatives  as  the  accusers,  or  the  Senate  as  the  triers, 
within  such  narrow  limits.  It  regards  the  process  of  impeach- 
ment as  the  important  personal  sanction  by  which  the  obser- 
vance of  official  duties  is  secured,  as  the  very  keystone  by 
which  the  arch  of  constitutional  powers  is  held  in  place.  (See 
§§  122,  149.)  As  the  punishment  to  be  inflicted  has  reference 
solely  to  the  offender's  official  position,  so  the  acts  for  which 
that  punishment  was  deemed  appropriate  must  have  reference, 
directly  or  inferentially,  to  the  offender's  official  duties  and 
functions.  Wherever  the  President,  or  Vice-President,  or  any 
civil  officer  has  knowingly  and  intentionally  violated  the  ex- 
press terms  of  the  Constitution,  or  of  a  statute  which  charged 
him  with  an  official  duty  to  be  performed  without  a  discre- 
tion, and  wherever  a  discretion  being  left,  within  the  bounds 
of  which  he  has  an  ample  choice,  he  exercises  that  discretion 

1  This  theory  is  set  forth  with  great  ability,  the  English  and  American 
authorities  in  its  support  are  fully  cited,  and  the  arguments  in  its  favor  are 
exhausted  in  6  American  Law  Register  (N.  S.)  257,  and  in  the  Report  of 
the  minority  of  the  Judiciary  Committee,  presented  to  the  House  of  Repre 
3entatives  Nov.  25,  1867. 


434  GROUNDS  OF  AN  IMPEACHMENT 

in  a  wilful  and  corrupt  manner,  or  even  in  a  rash  and  head- 
strong manner,  unmindful  of  the  ruinous  consequences  which 
his  acts  must  produce,  he  is  impeachable ;  and  it  makes  no 
difference  whether  the  act  has  been  declared  a  felony  or  a 
misdemeanor  by  the  criminal  legislation  of  Congress,  or  was 
regarded  as  such  by  the  common  law  of  England.  Indeed,  in 
this  view  the  officer  might  be  impeachable  for  very  many 
breaches  of  public  duty  which  it  would  be  impossible  to  treat 
as  ordinary  crimes  and  to  define  in  the  statute  book  as  indict- 
able offences.  Thus  the  President  has  a  power  to  grant  par- 
dons uncontrolled  and  uncontrollable  by  Congress  ;  every  par- 
don which  he  issues  is  valid,  whatever  be  his  motive  and  in- 
tent. It  would  be  absolutely  impossible  for  the  legislature  to 
make  the  conferring  a  pardon  in  any  specified  case  or  manner 
a  crime  for  which  an  indictment  would  lie.  But  it  cannot  be 
denied  that  the  President,  although  not  bribed,  might  exercise 
this  function  in  a  manner  which  would  destroy  the  efficacy  of 
the  criminal  law,  and  evince  a  design  on  his  part  to  subvert 
the  very  foundations  of  justice.  For  such  acts  he  would  be 
impeachable.  Again :  the  President  has  the  sole  power  to 
carry  on  negotiations  with  foreign  governments.  Congress 
may  not  dictate  to  him,  or  restrain  him,  much  less  make  any 
kind  of  diplomatic  intercourse  on  his  part  an  indictable  offence. 
But  by  a  rash,  headstrong,  wilful  course  of  negotiation  carried 
on  against  the  best  and  plainest  interests  of  the  country, 
although  without  any  traitorous  design,  he  might  plunge  the 
nation  into  a  most  unnecessary  and  disastrous  war.  For  such 
an  act  he  would  be  impeachable.  Again  :  the  President  as 
Commander-in-Chief  has  the  sole  power  to  wage  war.  Con- 
gress may  not  dictate  to  him  the  campaigns,  marches,  sieges, 
battles,  retreats,  much  less  make  any  method  of  conducting 
the  actual  hostilities  an  indictable  offence.  But  if  his  conduct 
was  something  more  than  a  mere  mistake  in  the  exercise  of 
his  discretion,  although  not  an  adhering  to  the  enemies  of  the 
United  States  giving  them  aid  and  comfort,  he  might,  by  a 
stubborn  and  wilful  persistence  in  his  plans  after  their  failure 
had  demonstrated  their  futility,  bring  defeat,  disgrace,  and 
ruin  upon  his  country.     For  such  an  act  he  would  be  impeach- 


IMPEACHMENT.  485 

able.     Many  more  instances  might  be  given,    but    these  are 
sufficient  for  illustration. 

§  720.  These  two  theories  will  now  be  subjected  to  a  brief 
examination,  and  considerations  will  be  sucrsested  which  seem 
to  support  the  latter,  and  to  give  it  a  preference  over  the  one 
first  stated.  A  fallacy  which  often  enters  into  discussions  upon 
the  meaning  of  language,  is  the  tacit  or  open  assumption  that 
two  alternatives  alone  are  possible  ;  that  if  one  extreme  is  re- 
jected, the  very  opposite  of  this  position  must  be  admitted. 
The  fallacy  is  shown  in  the  present  case.  It  may  be  said,  it  is 
said,  that  if  the  House  be  not  restricted  to  indictable  crimes, 
they  may  impeach  whenever  a  majority  shall  choose,  they  may 
impeach  for  a  mere  difference  of  opinion.  This  argument  ab 
inconveniently  though  often  resorted  to,  is  of  little  value.  The 
possible  abuse  of  power  is  no  valid  objection  to  the  existence 
of  the  power.  The  Constitution  is  full  of  grants  which  may 
be  abused  ;  wherever  there  is  a  discretion,  there  may  be  abuse. 
Indeed  it  was  because  discretion  must  be  given,  and  is  liable 
to  abuse,  that  the  convention  and  the  people,  after  exhausting 
all  the  checks  of  a  tripartite  government  and  of  frequent  elec- 
tions, inserted  the  particular  and  most  compulsive  sanction  of 
impeachment.  The  theories  stated  may  be  examined  (1)  by 
the  aid  of  such  authoritative  precedents  as  have  been  established 
in  the  course  of  our  political  history,  and  (2)  upon  principle 
independent  of  positive  authority. 

§  721.  As  far  as  the  House  of  Representatives  and  the 
Senate  have  already  acted,  under  the  impeachment  clauses, 
their  proceedings  have  been  directly  opposed  to  the  first  theory, 
and  in  strict  accordance  with  the  second.  It  must  be  remem- 
bered that,  if  the  argument  for  a  restrictive  interpretation  be 
valid  for  any  purpose,  it  proves  that  an  impeachment  is  only 
lawful  when  the  officer  has  been  guilty  of  a  statutory  offence 
against  the  United  States.  To  say  that  he  may  be  impeached 
for  an  act  which  would  be  indictable  by  the  English  common 
law  though  not  made  so  by  the  legislation  of  Congress,  is  to 
surrender  the  whole  position.  If  the  House  may  prefer  charges 
for  conduct  which  is  not  penal  by  the  law  of  the  United  States, 
but  is  criminal  by  that  of  England,  they  are  of  course  entirely 


486  GROUNDS  OF  AN   IMPEACHMENT. 

untrammelled.  The  legislation  of  another  nation,  whether 
statutory  or  unwritten,  cannot  be  a  rule  of  conduct  for  the 
United  States  government,  cannot  be  the  measure  of  its  pow- 
ers. How  then  does  the  fact  stand  ?  The  House  has  pre- 
ferred an  impeachment  in  five  cases.  The  first  was  dismissed 
by  the  Senate  on  the  preliminary  objection  that  the  respondent 
was  not  a  civil  officer.  The  other  four  were  tried  on  the 
merits.  In  two  instances  the  accused  was  convicted,  and  in 
two  was  acquitted.  In  three  of  these  cases  not  a  charge  was 
made  in  the  Articles  of  Impeachment  presented  by  the  House, 
which  imputed  an  indictable  statutory  crime  to  the  respondent ; 
most  of  the  charges  did  not  even  impute  a  common  law  mis- 
demeanor ;  all,  with  perhaps  a  single  exception,  alleged  a 
corrupt  or  wilful  violation  of  official  duty.  In  the  fourth  case 
the  offence  was  treason.  I  add  a  more  detailed  examination 
of  these  precedents  in  the  foot  note.1    The  House  in  proposing 

1  Case  of  Judge  Pickering.  —  See  Annals  of  Congress,  8th  Congress,  1st 
Session,  pp.  315-368.  A.  D.  1803-4.  —Abstract  of  the  Articles:  I.  A 
ship  was  arrested  for  violating  the  revenue  laws  ;  proceedings  for  condem- 
nation were  held  before  Judge  P. ;  allegation,  that  he  delivered  said  vessel 
to  the  claimant  without  requiring  a  certain  certificate  prescribed  by  an  act 
of  Congress,  contrary  to  this  act,  and  "  with  intent  to  evade  the  same."  II. 
Allegation,  that  on  the  trial  touching  said  ship,  he  refused  to  hear  the  testi- 
mony of  witnesses  produced  on  the  part  of  the  U.  S.,  "  with  intent  to  defeat 
the  just  claims  of  the  U.  S."  III.  Allegation,  that  he  refused  to  allow  an 
appeal  by  the  U.  S.  from  his  decree  in  said  case,  contrary  to  an  act  of  Con- 
gress, "  disregarding  the  authority  of  the  laws,  and  wickedly  meaning  and 
intending  to  injure  the  revenues  of  the  U.  S."  IV.  Alleged  acts  of  per- 
gonal immorality  done  in  so  public  a  manner  as  to  degrade  the  office. 

The  respondent  did  not  appear.  He  was  found  guilty  on  each  article  by 
a  vote  of  19  to  7,  and  was  removed  by  a  vote  of  20  to  6. 

Case  of  Judge  Chase.  —  See  Trial  of  Judge  Chase,  also  Annals  of  Con- 
gress, 8th  Congress,  2d  Session,  pp.  81-676.  A.  D.  1804-5.  Abstract  of 
the  Articles.  I.  Allegation,  that  on  the  trial  of  one  Fries  for  treason,  the 
respondent  was  arbitrary,  oppressive,  and  unjust,  in  expressing  an  opinion 
calculated  to  prejudice  the  jury  against  the  prisoner,  in  preventing  prison- 
er's counsel  from  citing  certain  authorities,  and  in  preventing  said  counsel 
from  addressing  the  jury  upon  the  law.  II.  Allegation,  that  on  the  trial  of 
one  Callender  for  libel,  he  refused  to  excuse  a  juryman  who  had  made  up 
nismind.  III.  Allegation,  that  on  the  same  trial  he  would  not  permit  the 
evidence  of  a  certain  material  witness  to  be  given.  IV.  Allegation,  that 
on  the  same  trial  his  conduct  was  marked  by  manifest  injustice  and  partial- 


IMPEACHMENT.  487 

Articles,  and  the  Senate  in  trying  the  accusations,  have  there- 
fore given  a  practical  construction  to  the  Constitution.  In 
doing  so  they  have  not  restricted  its  operation  within  narrow 

ity,  —  stating  particular  instances  of  arbitrary  acts  towards  the  prisoner's 
counsel.  V.  Allegation,  that  contrary  to  law  he  caused  said  prisoner  to 
be  arrested  and  committed  to  custody,  instead  of  causing  him  to  be  sum- 
moned to  appear  at  the  next  court.  VI.  Allegation,  that  he  caused  said 
prisoner  to  be  held  for  trial  during  the  term  at  which  he  was  indicted,  con- 
trary to  law.  VII.  Allegation,  that  at  a  certain  Circuit  Court  he  informed 
the  grand  jury  of  a  certain  seditious  printer,  and  urged  them  to  inquire 
into  the  case,  thus  degrading  the  judicial  office,  and  lowering  himself  to  the 
level  of  an  informer.  VIII.  Allegation,  that  at  another  Circuit  Court,  he 
delivered  an  intemperate  political  harangue  in  his  charge  to  the  grand 
jury,  thereby  degrading  the  judicial  office.  In  some  of  the  articles  an 
intent  to  oppress  the  prisoners  Fries  and  Callender  was  imputed,  in  others 
arbitrary  and  unjust  or  scandalous  behavior,  but  in  none  was  any  felonious 
or  other  technical  criminal  intent  charged.  (Chase's  Trial.  Vol.  1.  pp. 
5-8).  In  his  answer  the  respondent  insisted  that  none  of  the  allegations 
made  against  him  charged  any  "high  crime  or  misdemeanor"  within  the 
meaning  of  the  Constitution,  for  which  he  was  liable  to  impeachment. 
He  also  answered  each  article  on  the  merits,  and  while  admitting  many  of 
the  important  physical  acts  alleged  to  have  been  done  by  him,  justified 
them  all,  and  expressly  negatived  all  evil  intent,  and  all  arbitrary  and  wil- 
ful character  in  his  conduct.  (Trial,  v.  1,  pp.  25-103).  After  an  elaborate 
trial,  in  which  evidence  was  offered  upon  each  Article,  he  was  acquitted, 
although  a  majority  of  the  Senate  voted  guilty  on  Articles  III.,  IV.,  and 
VIII. 

Case  of  Judge  Peck.  A.  D.  1830.  — See  Trial  of  Judge  Peck.— 
Abstract  of  Articles.  I.  Allegation,  that  Judge  P.  having  published  an 
opinion  in  a  certain  case  before  him,  one  Lawless,  counsel  for  a  party  to 
the  case,  published  an  answer  thereto  in  the  newspapers.  Thereupon 
Judge  P.  procured  him  to  be  arrested  for  contempt,  imprisoned  him  for 
twenty-four  hours,  and  suspended  him  from  practice  for  eighteen  months. 
The  answer  of  the  respondent  justified  all  his  acts,  and  expressly  negatived 
all  allegations  of  arbitrary  or  oppressive  conduct,  and  of  evil  intent.  He 
was  acquitted  by  a  vote  of  22  to  21. 

Case  of  Judge  Humphries,  A.  D.  18G2.  —  The  Articles  all  charged  the 
crime  of  treason.     The  respondent  was  convicted. 

From  the  foregoing  abstract  it  appears  beyond  a  doubt  that  in  the  first 
three  cases  the  two  Houses  proceeded  upon  the  enlarged  view  of  their 
powers.  In  all  these  cases,  the  objection  that  no  indictable  offence  was 
charged,  if  it  be  such,  appeared  upon  the  face  of  the  Articles,  and  no 
amendment  could  possibly  cure  it ;  it  was  analogous  to  a  pleading  fatally 
defective  upon  general  demurrer.     Moreover  in  Judge  Chase's  case,  the 


488  GROUNDS   OF  AN  IMPEACHMENT. 

limits,  and  have  not  confined  the  proceeding  by  impeachment 
to  indictable  crimes  against  the  United  States. 

§  722.  But  we  are  to  inquire  which  of  these  theories  is  in 
most  complete  harmony  with  the  general  principles  of  con- 
stitutional construction.  The  two  branches  of  the  argument 
which  support  the  first,  lead  to  the  same  conclusion,  and 
although  somewhat  different  in  form,  are  in  fact  identical. 
Each  is  built  upon  a  single  premise,  and  if  this  be  incorrect, 
the  whole  falls  with  it.  The  first  mode  of  statement  rests 
upon  the  assumption  that  impeachment  under  the  Constitu- 
tion means  the  same  as  impeachment  by  the  English  law,  and 
that  the  Houses  of  Congress  have  only  the  authority  in  the 
matter  held  by  the  Houses  of  Parliament.  The  second  mode 
of  statement  rests  upon  the  assumption  that  "  high  crimes  and 
misdemeanors  "  is  to  be  taken  in  a  strict  technical  sense  as  a 
phrase  of  the  English  law  equivalent  to  "  felonies  and  misde- 
meanors," and  that  the  words  are  not  merely  indicative  and 
descriptive  of  general  classes  of  acts. 

§  723.  This  whole  theory  is  therefore  another  illustration  of 
the  constant  tendency  among  political  writers  and  statesmen  to 

objection  was  specially  pleaded  by  the  respondent,  the  demurrer  was  ac- 
tually put  in.  It  is  true  that  in  the  trial  of  Judge  Pickering,  the  respond- 
ent did  not  appear.  But  can  it  be  supposed  that  in  a  Senate  composed 
largely  of  able  lawyers,  the  fatal  defect  would  not  have  been  pointed  out, 
if  it  had  been  assumed  to  exist  ?  It  is  true  that  Judge  Chase  was  acquitted. 
But  the  Senate  went  to  trial  on  the  merits,  notwithstanding  a  plea  was  put 
on  the  record,  denying  their  jurisdiction  on  the  ground  that  no  indictable 
offence  was  charged.  The  respondent  was  acquitted  because  the  proof 
failed  to  establish  any  evil  intent  or  arbitrary  and  oppressive  design.  It  is 
rather  curious,  too,  that  in  two  of  the  Articles  upon  which  a  majority  were 
against  him  — the  4th  and  8th  —  no  act  or  intent  was  charged  which  conld 
possibly  amount  even  to  a  common  law  misdemeanor.  If  the  theory  I  am 
examining  be  correct,  the  Senate  had  no  jurisdiction  to  try  either  of  these 
impeachments:  the  proceedings  should  have  been  dismissed  upon  the  pre- 
sentation of  Articles  which  did  not  allege  an  impeachable  offence  ;  the 
eame  steps  should  have  been  taken  which  were  taken  in  Blount's  case. 
That  the  Senate  did  not  so  act,  but  heard  the  cases  on  the  merits,  is  proof 
positive  that  they  did  not  adopt  this  theory ;  their  proceedings  in  Chase's 
sase,  where  the  record  presented  the  point,  is  proof  positive  that  they  for- 
mally and  judicially -ejected  this  theory. 


IMPEACHMENT.  489 

argue  from  the  British  Constitution  to  our  own,  without  any 
regard  to  the  fundamentally  different  ideas  upon  which  they 
are  based,  and  the  fundamentally  different  methods  by  which 
these  ideas  are  made  practical.  The  powers  of  Congress  are 
measured  by  those  of  Parliament,  the  powers  of  the  President 
by  those  of  the  Crown.  The  principle  that  words  having  a 
technical  meaning  in  the  English  jurisprudence  as  it  stood 
when  our  organic  law  was  framed,  are  to  receive  the  same  and 
no  greater  meaning  if  found  in  the  Constitution,  has  been 
advocated  in  every  great  political  and  forensic  contest  which 
has  arisen  since  the  organization  of  the  government.  This 
principle,  as  far  as  it  purports  to  embody  a  general  rule  of  in- 
terpretation, has  been  repeatedly  repudiated  by  the  judiciary 
and  by  the  political  departments.  Thus,  Congress  has  given 
to  the  words  "  Admiralty  "  and  "  Bankruptcy  "  a  far  broader 
signification  than  belonged  to  them  by  the  English  law  when 
the  Constitution  was  adopted,  and  the  courts  have  approved 
the  legislative  construction.  The  true  rule  would  seem  to  be 
this  :  Where  words  having  a  well  known  technical  sense  by 
the  English  law  are  used  in  the  Constitution,  and  these  words 
are  the  keys  of  clauses  which  protect  the  private  rights  and 
liberties  of  the  people,  and  especially  of  clauses  which  impose 
direct  restraints  upon  the  government  in  respect  of  such  rights 
and  liberties,  and  the  technical  sense  itself  is  necessary  for  the 
complete  protection  of  the  individual  citizen,  this  signification 
must  still  be  retained  in  any  interpretation  of  those  provisions. 
But  on  the  other  hand,  where  words  which  had  a  technical 
meaning  by  the  English  law,  are  used  in  clauses  which  relate 
'o  the  general  functions  of  legislation  and  of  administration, 
and  to  the  political  organization  and  powers  of  the  govern- 
ment, such  a  sense  must  be  attributed  to  them  as  will  best 
carry  out  the  design  of  the  whole  organic  law,  whether  that 
signification  be  broader  or  narrower  than  the  one  which  had 
received  the  sanction  of  the  English  Parliament  and  Courts. 
§  724.  Applying  this  criterion,  we  must  reject  the  interpre- 
ation  which  makes  impeachment  under  the  Constitution  co- 
extensive only  with  impeachment  as  it  practically  exists  in 
England.     The  woid  is  borrowed,  the  procedure  is  imitated. 


490  GROUNDS  OF  AN  IMPEACHMENT. 

and  no  more  ;  the  object  and  end  of  the  process  are  far  dif- 
ferent. We  must  adopt  the  second  and  more  enlarged  theory, 
because  it  is  in  strict  harmony  with  the  general  design  of  the 
organic  law,  and  because  it  alone  will  effectively  protect  the 
rights  and  liberties  of  the  people  against  the  unlawful 
encroachments  of  power.  Narrow  the  scope  of  impeachment, 
and  the  restraint  over  the  acts  of  rulers  is  lessened.  If  any 
fact  respecting  the  Constitution  is  incontrovertible,  it  is  that 
the  convention  which  framed,  and  the  people  who  adopted  it, 
while  providing  a  government  sufficiently  stable  and  strong, 
intended  to  deprive  all  officers,  from  the  highest  to  the  lowest, 
of  any  opportunity  to  violate  their  public  duties,  to  enlarge 
their  authority,  and  thus  to  encroach  gradually  or  suddenly 
upon  the  liberties  of  the  citizen.  To  this  end  elections  were 
made  as  frequent,  and  terms  of  office  as  short,  as  was  deemed 
compatible  with  an  uniform  course  of  administration.  But 
lest  these  political  contrivances  should  not  be  sufficient,  the 
impeachment  clauses  were  added  as  a  sanction  bearing  upon 
official  rights  and  duties  alone,  by  which  officers  might  be 
completely  confined  within  the  scope  of  the  functions  com- 
mitted to  them.  We  cannot  argue  from  the  British  Constitu- 
tion to  our  own,  because  the  English  impeachment  is  not,  nor 
was  it  intended  to  be,  such  a  sanction.  But  the  English  law 
recognizes  a  compulsive  measure  far  more  terrible,  because  far 
more  liable  to  abuse  than  impeachment.  What  the  British 
Commons  and  Lords  may  not  do  by  impeachment,  the  Parlia- 
ment may  accomplish  by  a  Bill  of  Attainder.  If  the  Com- 
mons can  only  present,  and  the  Lords  can  only  try,  articles 
which  charge  an  indictable  offence,  there  is  no  such  restriction 
upon  their  resort  to  a  Bill  of  Attainder,  or  of  Pains  and  Pen- 
alties. The  Constitution  has  very  properly  prohibited  this 
species  of  legislation  ;  but  the  Constitutional  impeachment  was 
intended  to  partially  supply  its  place  under  another  and  better 
form,  by  introducing  the  orderly  methods  of  judicial  trial,  and 
by  requiring  a  majority  of  two  thirds  of  the  Senate  to  convict. 
§  725.  The  same  considerations  will  apply  with  equal  force 
to  that  branch  of  the  argument  which  is  based  upon  the  phrase 
'  high  crimes  and  misdemeanors."     Even  had  the  words  beec 


IMPEACHMENT.  491 

*  felonies  and  misdemeanors,"  we  should  not  be  obliged  to  take 
them  in  a  strict  technical  sense  ;  they  would  be  susceptible  of 
a  more  general  meaning  descriptive  of  classes  of  wrongful 
acts,  of  violations  of  official  duty  punishable  through  the  means 
of  impeachment.  But  in  fact  the  language  used  cannot  be 
reconciled  with  the  assumed  technical  interpretation.  The 
phrase  "  high  crimes  and  misdemeanors  "  seems  to  have  been 
left  purposely  vague  ;  the  words  point  out  the  general  charac- 
ter of  the  acts  as  unlawful ;  the  context  and  the  whole  design 
of  the  impeachment  clauses  show  that  these  acts  were  to  be 
official,  and  the  unlawfulness  was  to  consist  in  a  violation  of 
public  duty  which  might  or  might  not  have  been  made  an  ordi- 
nary indictable  offence.1 

§  726.  These  views  are  strengthened  by  a  reference  to  the 
practical  results  which  would  follow  from  the  restriction  of  im- 
peachment to  those  offences  that  had  been  made  indictable. 
Such  a  construction  would  remove  from  this  sanction  its  chief 
compulsive  efficacy.  The  importance  of  the  impeaching  power 
consists,  not  in  its  effects  upon  subordinate  ministerial  officers, 
but  in  the  check  which  it  places  upon  the  President  and  the 
judges.  They  must  be  clothed  with  an  ample  discretion  ;  the 
danger  to  be  apprehended  is  from  an  abuse  of  this  discretion. 
But  at  this  very  point  where  the  clanger  exists,  and  where  the 
protection  should  be  certain,  the  President  and  the  judiciary 
are  beyond  the  reach  of  Congressional  legislation.     Congress 

1  It  is  sometimes  proper  to  meet  a  very  narrow  argument  by  a  very  nar- 
row answer.  In  truth  the  word  "  crime  "  was  not  a  word  of  strict  techni- 
cal import,  was  not  a  term  of  art,  in  the  English  law  when  the  Constitu- 
tion was  adopted,  much  less  the  words  "  high  crimes."  "  Crime  "  was  of 
course  used  in  literature  and  in  conversation,  and  was  found  in  treatises  by 
approved  writers  on  law,  such  as  Blackstone.  But  if  we  go  to  indictments, 
which  were  drawn  in  accurate  legal  phraseology,  we  shall  not  discover  the 
word  "  crime  "  or  "  criminally  "  employed.  The  accused  was  alleged  to 
have  done  an  act  "  feloniously,"  or  "  wrongfully "  or  "  unlawfully,"  or 
''  with  force  and  arms,"  or  "  agains,f  the  peace  of  our  lord  the  King,"  but 
never  "  criminally."  If  it  appears  then  that  "  crime  "  was  not  a  technical 
word  of  art,  but  only  a  word  of  general  description,  the  whole  of  this 
branch  of  the  argument  at  once  falls  to  the  ground.  And  if  "  crimes  "  be 
not  a  word  of  art,  the  inference  is  irresistible  that  "  misdemeanors  "  is  also 
used  in  a  general  descriptive  and  not  in  a  technical  sense. 


492         GROUNDS  OF  AN  IMPEACHMENT. 

cannot,  by  any  laws  penal  or  otherwise,  interfere  with  the  ex- 
ercise of  a  discretion  conferred  by  the  Constitution.  Even 
had  the  legislature  been  clothed  with  express  authority  to 
define  and  punish  crimes  generally,  they  coidd  not  make 
criminal  any  kind  of  act  which  the  Constitution  permits  the 
President  or  the  judges  to  do,  and  subject  these  individuals  to 
indictment  therefor.  But  in  fact  the  express  authority  of  Con- 
gress to  define  and  punish  crimes,  is  very  limited.  If  the 
offence  for  which  the  proceeding  may  be  instituted,  must  be 
made  indictable  by  statute,  impeachment  thus  becomes  abso- 
lutely nugatory  against  those  officers  and  in  those  cases  where 
it  is  most  needed  as  a  restraint  upon  the  violations  of  public 
duty. 

§  727.  As  far  as  can  be  gathered  from  their  proceedings 
and  debates,  the  convention  which  framed  the  Constitution  did 
not  intend  to  limit  the  operation  of  the  impeachment  clauses  to 
indictable  offences.  At  an  early  stage  of  the  discussions,  the 
following  was  added  to  the  series  of  general  propositions  re- 
specting the  President :  "  He  shall  be  removed  on  impeach- 
ment and  conviction  of  malpractice  or  neglect  of  duty."  This 
form  was  preserved  through  all  the  important  debates  upon 
the  impeaching  power.  No  suggestion  was  made  that  an 
offence  must  be  indictable  in  order  to  be  impeachable.  The 
opposition  came  from  another  quarter.  Gouverneur  Morris, 
who  favored  a  very  short  term  of  office,  objected  to  the  pro- 
vision because  it  would  destroy  the  independence  of  the  Exec- 
utive ;  but  when  the  term  was  fixed  at  four  years  he  with- 
drew all  opposition.  The  propositions  having  been  referred  to 
a  committee,  they  were  reported  back  with  the  clause  as  fol- 
lows :  "  He  [the  President]  shall  be  removed  from  his  office 
on  impeachment  by  the  House  of  Representatives,  and  con- 
viction in  the  Supreme  Court,  of  treason,  bribery,  or  corrup- 
tion." A  reference  of  the  whole  draft  having  been  made  to 
a  revising  committee,  they  reported  back  the  clause  so  changed 
as  to  make  the  President  removable  upon  impeachment  and 
conviction  "for  treason  or  bribery."  A  short  debate  arose 
upon  this  report.  Col.  Mason  objected  to  the  provision  because 
t  was  not  broad  enough.     He  urged  that  the  President  mgiht 


PUNISHMENTS   UPON  CONVICTION.  493 

be  guilty  of  many  public  offences  besides  bribery  and  treason. 
He  said,  "  As  bills  of  attainder  are  forbidden,  it  is  more  neces- 
sary to  extend  the  power  of  impeachment."  He  moved  to 
add  the  words  "  or  maladministration."  Mr.  Madison  objected 
to  this  term  as  too  vague.  Gouverneur  Morris  saw  no  harm 
in  it.  Col.  Mason  then  withdrew  the  proposed  words,  and 
substituted  "  and  other  high  crimes  and  misdemeanors  against 
the  state,"  which  was  adopted.  The  revising  committee  finally 
reported  the  clause  as  it  now  stands.1 

When  the  Constitution  was  presented  to  the  people  for 
adoption,  one  of  its  most  able  opponents  was  Luther  Martin. 
In  his  celebrated  letter  to  the  Maryland  legislature  he  objected 
with  great  vehemence  to  the  Presidential  powers  and  office. 
He  also  considered  the  effect  of  the  impeachment  clauses. 
Had  they  been  deemed  insufficient  in  theory  to  meet  the  dan- 
gers he  feared,  no  man  would  have  been  more  ready  or  able 
to  point  out  the  defect,  because  no  man  was  more  conversant 
with  the  English  law  than  he.  But  he  distrusted  the  efficacy 
of  impeachment,  not  because  it  was  inapplicable  to  any  offen- 
ces except  those  against  positive  law,  but  because  he  believed  the 
House  would  never  impeach.2  Mr.  Madison,  in  1789,  ex- 
pressed his  opinion  in  the  most  formal  and  authoritative  man- 
ner that  the  President  is  impeachable  for  "  the  wanton  re- 
moval of  meritorious  officers."3  These  references  indicate 
how  the  impeaching  power  was  regarded  by  the  framers  of  the 
Constitution. 

§  728.  (3.)  What  Punishment  may  be  inflicted.  —  The  Con- 
stitution prescribes  the  nature  and  limit,  —  removal  from 
office,  and  disqualification  from  holding  office.  The  Senate  can 
inflict  no  different  punishment,  but  is  not  required  to  impose 
the  entire  penalty.  A  sentence  of  removal  would  be  valid, 
although  disqualification  were  not  also  imposed.  But  if  the 
offence  be  also  an  indictable  crime,  the  liability  to  the  ordi- 
nary process  of  the  criminal  law  still  exists. 

1  See  Journal  of  the  Convention,  1  Elliott's  Deb.  pp.  158,  213,  222,  228 
Also  Madison's  Debates,  5  Elliott's  Deb.  pp.  149,  335,  340-313,  366,  380, 
507,  528. 

2  See  §  644  3  See  §  649. 


494  PUNISHMENTS   UPON   CONVICTION. 

May  the  officer  impeached  be  suspended  from  the  exercise 
of  his  official  duties  during  the  pendency  of  the  proceedings 
before  final  judgment  of  conviction  or  acquittal  ?  The  Presi- 
dent, Vice-President,  and  judges  clearly  cannot  be  suspended, 
either  by  any  act  of  the  House  of  Representatives,  or  by  any 
law  of  Congress.  The  Constitution  certainly  gives  no  express 
power  to  suspend  ;  whatever  authority  exists  must  be  derived 
by  implication  from  other  sources.  One  fact  is  absolutely 
conclusive  upon  this  question,  without  any  minute  criticism  of 
particular  expressions  in  the  Constitution.  The  President, 
Vice-President  and  judges  while  their  offices  exist,  are  placed 
by  the  Constitution  in  a  position  entirely  independent  of  the 
legislature ;  their  terms  of  office  are  fixed  ;  they,  as  well  as 
Congress,  derive  their  authority  from  the  fundamental  law  ; 
the  only  mode  of  removing  them  is  by  an  impeachment,  trial 
and  conviction.  This  proceeding  is  not  a  legislative  but  a 
judicial  act.  Congress  as  a  body  does  not  remove,  but  the 
House  accuses  and  the  Senate  tries  and  convicts. 

In  respect  to  subordinate  ministerial  officers  I  think  the 
power  exists.  These  offices  are  created  by  law  ;  the  Consti- 
tution does  not  prescribe  any  length  of  term,  but  Congress  has 
this  matter  at  its  complete  disposal.  It  would  seem,  therefore, 
that  the  legislature  may,  by  general  statute,  provide  for  suspend- 
ing all  subordinate  ministerial  officers  from  the  exercise  of  their 
functions  during  the  pendency  of  an  impeachment  against  them. 
I  do  not  think  the  measures  of  arrest  and  bail,  or  confinement 
in  ordinary  criminal  proceedings  have  any  analogy  to  this  pro- 
cess of  suspension  ;  nor  do  the  English  precedents,  however 
numerous,  give  any  aid  in  the  interpretation  of  the  Constilu 
tion  in  this  respect. 


CHAPTER  VI. 

THE   JUDICIAL   POWERS    OF   THE   UNITED    STATES    GOVERNMENT. 

§  729.  Article  III.,  Section  I.  provides  that  "  The  judicial 
power  of  the  United  States  shall  be  vested  in  one  Supreme 
Court,  and  in  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish."  Section  II.  is  as  follows  : 
"  The  judicial  power  shall  extend  to  all  cases  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the  United 
States,  and  the  treaties  made,  or  which  shall  be  made,  under 
their  authority  ;  to  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls  ;  to  all  cases  of  admiralty,  and  maritime 
jurisdiction  ;  to  controversies  to  which  the  United  States  shall 
be  a  party ;  to  controversies  between  two  or  more  states  ;  be- 
tween a  state  and  citizens  of  another  state  ;  between  citizens 
of  different  states  ;  between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states  ;  and  between  a  state  or 
the  citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 
In  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  and  those  in  which  a  state  shall  be  a  party,  the  Su- 
preme Court  shall  have  original  jurisdiction.  In  all  other  cases 
before  mentioned,  the  Supreme  Court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions,  and 
under  such  regulations,  as  the  Congress  shall  make."  In  this 
connection  should  be  read  Article  XI.  of  the  Amendments. 
"  The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens  of 
another  state,  or  by  citizens  or  subjects  of  any  foreign  state." 

An  exhaustive  treatment  of  the  judicial  powers  as  now  exer- 
cised in  fact  would  require  me,  (1)  to  examine  what  powers 
n  the  aggregate  may  be  wielded  by  the  national  judiciary,  or 


496  NATURE   OF  JURISDICTION. 

in  other  words,  what  jurisdiction  has  the  Constitution  directly 
conferred,  or  authorized  the  Congress  to  confer  ;  (2)  to  describe 
the  extent  to  which  Congress  lias  acted,  or  in  other  words,  how 
far  it  has  passed  laws  which  confer  the  jurisdiction  which  may 
be  given  ;  and  (3)  to  explain  the  organization  of  the  nationa. 
courts,  and  the  distribution  of  functions  among  them.  The  first 
only  of  these  topics  belongs,  however,  to  the  department  of  Con- 
stitutional Law,  and  it  alone  will  be  considered  in  this  work. 

§  730.  As  introductory  to  the  particular  matter  of  tins 
chapter  a  few  observations  will  be  made  upon  the  nature  of 
jurisdiction  in  general.  Jurisdiction  is,  in  brief,  the  power  of  a 
court  to  decide.  To  state  the  same  fact  in  another  form,  it  is 
the  power  or  capacity  of  a  court  to  grant  a  remedy,  and  thus 
to  protect  some  primary  legal  right,  and  enforce  some  primary 
legal  duty.  It  may  therefore  be  contentious,  where  the  exist- 
ence of  the  right  and  duty  is  denied,  and  must  be  established 
before  the  remedy  is  granted ;  or  it  may  be  ex  parte  or  non- 
contentious,  where  the  existence  of  the  right  is  admitted,  and 
only  some  formal  act  of  a  court  is  necessary  in  order  that  the 
right  may  be  protected  or  enforced. 

The  jurisdiction  residing  in  all  tribunals  of  justice,  may  be 
considered  in  respect  of  its  several  kinds,  classes,  natures,  and 
grades  or  degrees,  and  also  in  respect  of  the  sources  from  which 
it  is  derived.  When  jurisdiction  is  considered  in  respect  of  its 
various  kinds,  classes,  natures,  and  degrees,  we  shall  find  sev- 
eral distinct  lines  of  division,  based  upon  different  ideas,  and 
often  crossino'  each  other. 

§  731.  In  relation  to  the  mere  form  and  kind  of  the  remedy 
administered  by  the  courts,  there  are  in  England  and  America 
the  familiar  departments  of  civil  and  criminal  jurisdiction  ;  the 
one  being  the  power  to  administer  a  remedy  on  the  application 
of  a  private  suitor,  for  the  establishment,  protection,  or  enforce- 
ment of  a  private  legal  right ;  the  other,  the  power  to  admin- 
ister a  remedy  on  the  application  of  the  state,  for  the  punish- 
ment of  a  breach  of  a  duty  to  society.  Again  :  in  relation  to 
the  mere  form  and  kind  of  the  remedy  administered,  there  are 
in  England  and  America  the  well  known  divisions  of  Common 
Law,   Equity,  Admiralty,    and  Probate  jurisdiction  ;  and  in 


THE  JUDICIAL   POWERS  497 

England  Jie  special  case  of  Ecclesiastical  jurisdiction  '"owing 
out  of  the  union  of  church  and  state.  The  common  law 
jurisdiction  is  both  civil  and  criminal ;  the  admiralty,  though 
mainly  civil,  has  a  criminal  side  ;  the  equitable  and  the  pro- 
bate are  purely  civil. 

§  732.  In  relation  to  its  nature,  jurisdiction  of  all  kinds  ir 
either  original  or  appellate.  All  the  courts  which  exercise  any 
power  to  administer  a  remedy,  must  exercise  it  in  one  of  these 
two  forms.  Original  jurisdiction  is  the  power  to  hear  and  de- 
cide a  legal  controversy,  or  to  administer  a  remedy,  in  the  first 
instance.  Courts  in  which  suits  may  be  brought,  or  which 
may  grant  some  special  remedies,  are,  in  respect  of  such  suits 
and  special  remedies,  tribunals  of  original  jurisdiction.  The 
appellate,  on  the  other  hand,  is  entirely  a  power  to  review  the 
act,  or  decision,  or  determination  of  some  other  court,  the 
appellate  tribunal  being  generally  considered  as  superior  to  the 
one  whose  decision  is  appealed  from  and  reviewed.  It  is  plain 
that  there  is  nothing  in  the  nature  of  things  to  prevent  the 
same  court  from  possessing  both  an  original  and  an  appellate 
jurisdiction.  In  fact,  as  the  judicial  machinery  of  England  and 
of  America  is  organized,  there  is  an  ascending  series  of  courts, 
many  of  those  which  are  intermediate  having  both  the  original 
and  the  appellate  jurisdiction.  In  the  United  States  system 
there  are  three  grades  of  tribunals,  the  District  Courts,  the 
Circuit  Courts,  and  the  Supreme  Court.  The  first  of  these 
possesses  only  an  original  jurisdiction  ;  the  second  is  clothed 
with  both  ;  the  Supreme  Court  is  chiefly  appellate,  but  some 
special  original  jurisdiction  of  great  importance  is  conferred 
upon  it. 

§  733.  Jurisdiction  may  be  exclusive,  or  concurrent.  A 
court  possesses  an  exclusive  jurisdiction  when  it  alone  can  take 
cognizance  of  a  particular  class  of  cases,  or  can  administer 
some  particular  remedy.  Thus,  by  the  combined  operation  of 
the  Constitution,  and  of  statutes  of  Congress  passed  in  virtue 
thereof,  the  national  courts  have  a  jurisdiction  exclusive  of  the 
states  over  certain  classes  of  cases,  as  for  example,  suits  for 
the  infringements  of  patent  rights,  admiralty  causes,  and  many 
others.  Two  or  more  courts  have  a  concurrent  jurisdiction 
32 


i98  NATURE   OF  JURISDICTION. 

when  the  suit  or  proceeding  might  have  been  originally  insti- 
tuted in  either,  at  the  will  or  election  of  the  suitor. 

§  784.  In  relation  to  the  extent  of  the  power  which  courts 
possess  to  hear  and  determine,  their  jurisdiction  is  general,  or 
limited.  The  word  general,  used  in  its  broadest  sense,  would 
imply  that  the  court  had  authority  to  hear  and  determine  any 
and  all  suits  and  proceedings  of  every  description  which  may  be 
instituted  to  enforce,  protect,  or  establish  legal  rights  ;  while  the 
word  limited  would  imply  that  the  court  was  restricted  in  its 
authority  to  some  particular  kinds  or  classes  of  suits  or  pro- 
ceedings. If  this  wide  significance  were  given  to  the  word 
general,  there  is  no  court  in  England  or  America  which  pos- 
sesses a  general  jurisdiction.  There  is  plainly  none  in  America, 
because  all  state  courts  are  prevented  from  entertaining  some 
special  classes  of  suits  which  are  confided  exclusively  to  the 
national  tribunals,  while  these  latter  are  hedged  about  by  the 
provisions  of  the  Constitution  which  confine  their  powers 
within  comparatively  narrow  bounds.  The  word,  therefore, 
as  descriptive  of  jurisdiction,  is  used  in  a  sense  much  less  broad. 
Certain  kinds  of  courts  are,  from  their  very  nature,  plainly 
limited  ;  the  peculiar  functions  which  they  wield  forbid  the  use 
of  the  word  general  as  applied  to  them.  Thus,  courts  purely 
and  distinctively  admiralty,  or  probate,  do  not  possess  a  general 
jurisdiction  ;  although  we  might  with  propriety  denominate 
them  —  if  the  fact  were  so  —  courts  of  general  admiralty, 
or  of  general  probate  jurisdiction,  that  is,  courts  in  which  all 
admiralty,  or  all  probate  matters  might  be  originally  brought. 

§  785.  The  epithet  general,  as  descriptive  of  jurisdiction, 
and  as  designating  a  class  of  courts,  is  only  applied  to  common 
law  and  equity  tribunals.  A  common  law  court  possesses  gen- 
eral jurisdiction,  when  it  may  originally  entertain  all  actions  or 
proceedings  by  which  common  law  remedies  are  administered, 
and  rights  strictly  legal  enforced,  without  restriction  as  to  the 
nature  of  the  controversy,  or  the  situation  of  the  parties,  except 
such  as  the  modes  of  practice  and  procedure  adopted,  have 
established.  An  equity  court  possesses  general  jurisdiction, 
when  it  may  originally  entertain  all  actions  and  proceedings 
by  which  equitable  remedies  are  administered,  and  equitable 


THE  JUDICIAL  POWERS.  499 

rights  are  enforced.  In  England  the  three  superior  courts, 
the  King's  Bench,  the  Common  Pleas,  and  the  Exchequer  are 
examples  of  the  former  class  ;  the  High  Court  of  Chancery,  of 
the  second  class.  In  the  United  States  all  the  state  tribunals 
are,  by  the  operation  of  the  National  Constitution,  deprived  of 
certain  functions  -which  belong  to  the  superior  courts  of  law 
and  of  equity  in  England.  Bearing  this  important  restriction 
in  mind  it  may  be  said  that  each  state  contains  at  least  one 
court  of  general  jurisdiction,  which,  in  most  instances,  extends 
to  cases  both  in  law  and  equity.  None  of  the  United  States 
Courts,  as  we  shall  see  in  the  sequel,  can  properly  be  said  to 
have  a  general  jurisdiction. 

§  736.  The  great  majority  of  courts  plainly  possess  but  a 
limited  jurisdiction,  whatever  be  the  form  and  nature  of  the 
particular  remedies  which  they  administer.  Indeed  it  would 
hardly  be  proper  to  assume  the  kind  of  remedy  which  any 
court  is  competent  to  grant,  as  the  criterion  or  test  of  the  ex- 
tent of  its  jurisdiction.  If  we  should  suppose  that  one  tribunal 
might  entertain  and  determine  suits  based  upon  all  possible 
causes  of  action,  but  wTas  restricted  to  a  certain  class  of  rem- 
edies, while  another  tribunal  might  entertain  and  determine 
suits  based  upon  the  very  same  states  of  facts,  but  was  limited* 
to  the  use  of  an  entirely  different  class  of  remedies,  we  would 
properly  say  of  each  that  it  possessed  a  general  jurisdiction. 
What  then  is  meant  by  the  term  limited,  as  applied  to  courts? 
It  is  opposed  to  general,  as  the  latter  has  been  defined.  The 
limitation  imposed  upon  the  jurisdiction  of  any  particular  court, 
may  have  respect  solely  to  the  subject-matter  of  the  action  or 
proceeding  which  is  entertained  therein  ;  or  solely  to  the  per- 
sons who,  as  parties,  may  prosecute  or  be  prosecuted  therein  : 
or  to  these  two  combined. 

§  737.  1.  The  Subject-matter  of  the  Action.  —  I  speak  now 
of  this  limitation  independent  of  all  others.  It  involves  the 
fact  that  any  person  capable  of  proceeding  or  being  proceeded 
against  at  all,  may  prosecute  or  be  prosecuted  in  such  courts ; 
but  that  such  persons  can  only  institute  suits  based  upon  cer- 
tain specified  causes  of  action,  can  only  seek  relief  for  certain 
oarticular  breaches  of  primary  rights,  or  for  bveaches  of  certain 


500  NATURE   OF  JURISDICTION. 

particular  primary  rights.  This  restriction  upon  the  subject- 
matter  over  which  the  court  lias  jurisdiction,  may  relate  tc 
several  different  elements  or  characteristics  of  that  subject- 
matter.  It  may  have  reference  exclusively  to  the  essential 
nature  of  the  cause  of  action  ;  that  is,  to  the  very  nature  of  the 
primary  right  or  the  breach  thereof.  Thus  courts  of  probate 
are  confined  to  a  narrow  and  accurately  defined  field  of  ac- 
tivity. The  jurisdiction  of  admiralty  courts  is  limited  to  a 
very  special  class  of  forensic  disputes.  This  species  of  limita- 
tion rests,  to  a  very  great  extent,  upon  the  national  courts. 
The  restriction  upon  the  subject-matter  over  which  a  court 
has  jurisdiction,  may  also  have  reference  solely  to  the  amount 
of  the  claim,  or  the  value  of  the  property  involved  in  the  con- 
troversy. Or  it  may  be  based  upon  the  locality  of  the  cause 
of  action ;  that  is,  upon  the  situation  of  the  property  which  is 
in  dispute,  or  upon  the  place  where  the  cause  of  action  arose, 
if  it  do  not  relate  to  the  ownership  of,  or  injury  to,  fixed  prop- 
erty. 

§  738.  2.  The  Parties  to  the  Action.  —  This  limitation  ex- 
tends to  those  cases  only  where  some  peculiar  character  im- 
pressed upon  the  person,  or  some  peculiar  circumstance  affecting 
him,  is  necessary  to  give  the  court  jurisdiction  over  him  either 
as  the  party  prosecuting  or  the  party  defending ;  so  that  when 
this  necessity  is  met,  any  subject-matter  may  be  drawn  within 
the  sphere  of  judicial  action.  The  restriction  as  to  persons 
may  have  reference  to  some  peculiar  status  or  official  charac- 
ter of  the  litigants.  Thus  the  Constitution  gives  to  the  Su- 
preme  Court  a  jurisdiction  in  all  matters  affecting  ambassadors, 
other  public  ministers,  and  consuls.  By  far  the  most  common 
form  of  this  limitation  has  respect  to  the  residence  or  locality 
of  the  parties.  The  Constitution  makes  the  residence  of  parties 
a  criterion  or  test  of  the  jurisdiction  held  by  the  national  courts, 
without  any  reference  to  the  subject-matter  of  the  controversy  ; 
it  gives  those  tribunals  the  power  to  entertain  and  decide  all 
controversies  between  a  state  and  citizens  of  another  state, 
between  citizens  of  different  states,  and  between  a  state  or 
citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 
In  the  case  of  many  inferior  courts  these  two  general  species 


THE   JUDICIAL  POWERS.  501 

of  restriction  —  that  upon  the  subject-matter  and  that  upon 
persons — are  combined  in  determining  the  extent  )f  jurisdic- 
tion. 

§  739.  Whence  do  courts  derive  their  jurisdiction  ?  I  answer, 
either  from  the  common  law,  or  from  statutes,  including  our 
written  constitutions  under  the  latter  head.  It  must  be  ob- 
served that  there  is  a  wide  difference  between  the  creation 
and  organization  of  a  judicial  tribunal,  and  the  conferring  of 
jurisdiction  upon  it.  All  the  courts  in  our  country,  state 
and  national,  are  the  creatures  of  constitutions  or  statutes ; 
all,  however,  do  not  derive  their  jurisdiction  from  the  same 
source.  It  may  be  said  generally  that  when  an  American  court 
draws  its  powers  from  the  common  law,  it  possesses  all  the  func- 
tions which  were  held  by  the  co-ordinate  courts  in  England, 
except  so  far  as  those  attributes  have  been  limited  or  taken 
away  by  the  organic  law  or  by  positive  legislation.  On  the 
other  hand,  those  courts  which  draw  their  powers  from  con- 
stitutions and  statutes,  possess  those  functions  alone  that 
have  been  expressly  conferred,  and  cannot  aid  or  enlarge  their 
authority  by  appealing  to  the  unwritten  law  behind  the 
statute. 

It  is  a  settled  doctrine  that  the  national  courts  are  clothed 
with  no  common  law  jurisdiction,  but  derive  all  their  powers 
from  the  Constitution  and  laws  of  Congress  enacted  in  pursu- 
ance thereof,  and  are  therefore  bound  by  the  express  grants 
contained  in  the  organic  law  and  in  this  positive  legislation. 
The  limits  of  their  authority  are  thus  fixed  ;  Congress  may 
perhaps  fail  to  come  up  to  those  boundaries  ;  it  cannot  pass 
them. 

§  740.  With  this  outline  of  the  nature,  extent,  and  sources 
of  jurisdiction  in  general,  I  pass  to  the  special  subject  of  the 
present  chapter. 

No  one  will  deny  that  in  every  community  claiming  to  be 
a  nation,  the  supreme  government  should  possess  a  judicial 
power  commensurate  in  all  respects  witn  its  power  of  legisla- 
tion. Indeed,  without  such  judicial  power,  the  power  of 
egislation  would  be  either  a  nullity,  or  an  irresponsible  and 
•rbitrary  tyranny.      It  would   be   a  nullity,  because  all  laws 


502  EXTENT   OF   THE   JUDICIAL  POWERS. 

involve  the  idea  of  a  sanction  to  enforce  the  command  ;  without 
the  sanction  the  command  would  simply  be  a  request  or  the 
expression  of  a  wish.  In  civilized  countries,  the  judiciary,  in 
effect,  wields  the  sanctioning  authority  ;  it  enforces  penalties 
of  one  sort  or  another  for  the  breach  of  public  and  of  private 
rights.  It  is  plainly  necessary,  therefore,  that  this  sanctioning 
authority,  or  authority  to  enforce,  should  be  coextensive  with 
the  legislative  authority,  or  authority  to  create  law.  Just 
so  far  forth  as  the  former  should  fall  short  of  the  latter,  the 
laws  would  either  be  nullities,  or  would  be  arbitrarily  executed 
by  the  ministerial  officers.  Of  course  it  is  not  indispensable 
that  each  particular  tribunal  should  possess  functions  equal  in 
extent  to  those  of  the  legislature  ;  there  may  well  be  grades 
of  courts.  But  the  judicial  system  as  a  whole  must,  if  the 
energies  of  the  nation  and  the  liberties  of  the  people  are  to  be 
preserved,  be  equal  in  the  field  of  its  operations  to  the  law- 
making department.  Thus  we  find  in  England,  side  by  side 
with  an  omnipotent  Parliament,  a  number  of  superior  courts 
clothed  with  a  general  jurisdiction.  In  our  own  country  the 
states  under  the  National  Constitution,  possess  but  a  limited 
legislative  authority ;  in  respect  to  many  important  subjects 
their  power  to  enact  laws  is  taken  away.  But  they  have  all 
established  a  judiciary  with  functions  commensurate  with  the 
legislative  attributes  conferred  upon  them  by  the  people  of  the 
nation. 

§  741.  In  the  next  place,  it  may  be  affirmed  that  the  judi- 
ciary need  have  no  greater  degree  or  amount  of  power  than 
that  held  by  the  supreme  legislature  of  a  state  or  nation. 
Indeed,  as  far  as  such  an  excess  of  power  should  be  expressly 
granted  to  the  courts,  it  would  be  unnecessary  and  likely  to 
produce  great  evils,  except  in  very  peculiar  circumstances,  such 
as  those  which  will  be  mentioned  in  the  sequel ;  as  far  as  it 
should  be  assumed  by  them,  the  act  would  be  a  palpable  usur 
pation.  These  principles  which  seem  to  be  elementary  and 
fundamental,  to  be  a  part  of  the  very  axioms  of  political 
science,  are  of  the  utmost  importance  in  this  discussion,  for  by 
them  we  must  test  the  jurisdiction  which  may  be  wielded  by 
the  national  courts. 


EXTENT   OF    THE  JUDICIAL   POWERS.  503 

§  742.  There  was  no  plainer  note  of  the  unnational  charac- 
ter of  the  early  confederated  government,  than  the  absence  of 
any  judiciary  of  the  United  States.  But  the  contrivers  of  that 
unfortunate  plan  were  at  least  logical  and  consistent.  As  there 
was  no  judiciary,  there  was  no  Executive  ;  the  utterances  of 
the  Congress  were  not  addressed  to  individuals  as  commands, 
but  to  assumed  sovereign  states,  as  requests  or  recommenda- 
tions. When  the  Convention  determined  to  frame  a  govern- 
ment which  should  express  the  national  idea,  be  founded  upon 
the  fact  of  an  existing  nationality,  and  be  clothed  with  national 
attributes,  the  necessity  of  a  national  judiciary  was  at  once 
conceded.  The  important  question  to  be  determined  was,  the 
amount,  extent,  and  nature  of  the  jurisdiction  to  be  conferred 
upon  that  system  of  courts  in  the  aggregate.  Reasoning  a 
priori,  it  must  be  said  that  as  far  as  the  powers  of  Congress 
or  of  the  Executive  extend,  so  far  should  the  powers  of  the 
judiciary  extend  ;  as  far  as  the  legislation  of  the  national  gov- 
ernment or  the  acts  of  the  Executive  are  supreme,  so  far 
should  the  jurisdiction  of  the  courts,  and  their  decisions  in 
accordance  therewith,  be  supreme.  Where  the  legislature  is 
authorized  to  make  laws,  the  courts  should  be  authorized  to 
expound  them,  and  apply  the  sanction  ;  where  the  laws  thus 
made  are  binding  upon  the  community,  and  superior  to  all  local 
and  state  legislation,  the  expositions  made  and  the  sanctions 
applied  by  the  judiciary  should  be  equally  binding  and  superior. 

§  743.  The  correctness  of  this  reasoning  no  one  can  deny. 
Strip  the  national  government  of  an  authority  to  apply  a  sanc- 
tion commensurate  with  its  power  to  legislate,  and  just  so  far 
we  subtract  from  that  legislation  the  necessary  element  of  a 
command.  Strip  the  government  of  the  ability  to  make  that 
sanction  supreme,  and  we  equally  invalidate  the  authority  of 
the  legislative  utterance.  This  attribute  of  supremacy  would 
be  destroyed  by  permitting  the  state  courts,  for  example,  to 
decide  upon  the  effect  of  national  laws,  and  by  making  their 
decisions,  in  the  particular  state  where  made,  of  an  equal 
authority  with  those  pronounced  upon  the  same  subject  by  the 
national  judges.  This  difficulty  thus  to  be  apprehended  from 
the  action  of  state  tribunals,  could  only  be  prevented  in  one 


504  EXTENT   OF   THE  JUDICIAL   POWERS. 

of  two  ways  ;  either  by  removing  from  them  the  power  \c. 
decide  at  all  upon  rights  and  duties  which  spring  from  the 
national  legislation,  and  conferring  the  function  exclusively 
upon  the  United  States  courts  ;  or  by  permitting  the  state 
judiciary  to  exercise  a  jurisdiction  in  such  casus,  but  making 
that  jurisdiction  subordinate  to  the  authority  of  the  national 
courts,  and  rendering  the  local  decisions  reviewable  by  the 
United  States  judges  who  could  in  this  manner  enforce  their 
attribute  of  supremacy  in  relation  to  the  matters  under  con- 
sideration. In  theory  the  former  of  these  plans  would  have 
been  the  more  simple  and  perfect.  But  it  was  perhaps  best, 
from  some  motives  of  expediency,  that  the  Constitution  should 
not  expressly  determine  between  these  two  methods,  but 
should  clothe  Congress  with  the  power  of  making  such  a 
choice  of  the  alternatives  as  should  be  found  to  promote  the 
convenience  of  the  people.  Congress  possesses  such  an 
authority  ;  it  might  make  all  this  jurisdiction  exclusive  in  the 
national  courts,  but  has  done  so  only  in  particular  cases  ;  it 
might  suffer  the  state  tribunals  to  exercise  a  complete  concur- 
rent power,  subject  to  an  equally  complete  liability  to  review, 
but  has  done  so  only  to  a  limited  extent.  Whether  Congress 
shall  adopt  one  or  the  other  alternative,  is  a  mere  question  of 
policy  ;  it  may  do  either.  I  remark  in  passing,  that,  as  the 
true  relations  between  the  nation  and  the  states  become  more 
clearly  defined,  this  jurisdiction  will  be  relegated  entirely  to 
that  department  where  it  theoretically  belongs,  —  to  the  judi- 
ciary of  the  United  States. 

§  744.  If  it  had  been  the  intention  to  make  the  govern- 
ment of  the  United  States  unlimited,  then  its  judiciary  should 
have  been  clothed  with  functions  equally  extensive,  identical 
with  those  entrusted  to  the  superior  courts  of  law  and  equitv 
in  England.  But  such  was  not  the  design  ;  such  was  not  the 
fact.  The  new-made  government  was  limited  in  the  range  of 
its  legislative  and  administrative  attributes  ;  and  so  far  forth  as 
the  jurisdiction  of  the  national  courts  was  to  be  based  upon 
ihe  existence  of  those  attributes,  it  should  partake  of  the  same 
•imitation  ;  in  theory  and  in  general,  it  should  have  extended 
no  farther.     But  the  situation  of  the  United  States  was  pecu 


EXTENT   OF   THE   JUDICIAL  POWERS  50o 

liar,  and  the  ordinary  rules  of  civil  polity  must  be,  in  a  meas- 
ure, departed  from.  With  a  central  government  possessing 
restricted  and  well  defined  attributes,  which  were,  however, 
supreme  within  their  sphere,  and  which  acted  upon  all  the 
individuals  composing  the  political  society,  there  were  the  state 
governments,  to  which  the  people  had  confided  all  the  func- 
tions not  granted  to  their  national  rulers  and  not  retained  dor- 
mant  by  themselves,  which  acted  independently  of  each  other, 
and  upon  a  portion  of  the  same  persons  who  were  under  the 
supremacy  of  the  central  authority.  There  was  danger,  then 
that  the  rights  of  all  citizens  of  the  country  at  large  might  not 
be  securely  protected.  If  a  citizen  of  the  nation  inhabiting  one 
state  were  obliged  to  enforce  a  claim  against  an  inhabitant  of 
another  state,  even  though  the  controversy  should  grow  out 
of  a  matter  over  which  the  states  have  exclusive  powers  of 
legislation  and  administration,  it  might  be  that  local  prejudice, 
passion,  or  rivalry  would  prevent  justice  being  done  him  in 
the  courts  of  the  latter  commonwealth.  The  same  wculd  be 
true  if  a  foreigner  prosecuted  the  inhabitant  of  a  state  in  its 
own  tribunals.  The  states,  as  such,  have  no  foreign  relations, 
and  their  courts  might  not  feel  the  necessity  of  preserving  a 
condition  of  amity  with  foreign  governments  by  doing  com- 
plete justice  to  their  subjects. 

§  745.  From  these  considerations  it  was  politic  to  clothe  the 
United  States  judiciary  with  a  power  beyond  the  scope  of  the 
legislative  and  administrative  functions  held  by  the  co-ordi- 
nate departments.  In  order  to  protect  the  citizen  and  the 
alien,  it  was  expedient  to  permit  the  national  courts  to  decide 
upon  rights  growing  out  of  state  laws,  state  acts,  and  causes 
completely  within  state  control.  But  this  supplementary 
jurisdiction  should  not  be  unlimited  ;  it  should  extend  no 
farther  than  the  necessities  of  the  case  demand ;  it  should 
not,  therefore,  depend  upon  the  subject-matter  involved  in  the 
controversy,  but  upon  the  situation  and  condition  of  the  liti- 
gant parties.  Moreover,  this  special  jurisdiction  should  not 
be  exclusive  of  the  state  courts  ;  on  the  contrary,  the  latter 
should  be  left  with  a  full  liberty  of  concurrent  action.  Again, 
the  decisions  of  the  national  judiciary  made  in  pursuance  of 


}06  EXTENT   OF   THE  JUDICIAL  POWERS. 

this  special  power,  need  not  be  supreme  and  binding  upon  the 
states.  It  was  enough  that  the  particular  party  who  appealed 
to  the  United  States  courts  had  complete  justice  done  him  in 
respect  to  the  matter  in  dispute.  Should  their  decisions  upon 
subjects  of  this  class  be  made  supreme,  the  different  states 
would  be  so  far  limited  in  the  exercise  of  governmental  pow- 
ers that  had  been  exclusively- conferred  upon  them,  and  which 
had  been  denied  to  the  national  rulers. 

Such  seem  to  have  been  the  considerations  which  suggested 
themselves  to  the  framers  of  the  Constitution,  as  the  general 
principles  to  be  followed  in  clothing  the  national  judiciary 
with  its  peculiar  functions.  At  all  events  the  whole  plan  is 
arranged  in  accordance  with  these  principles.  We  are  now, 
therefore,  brought  directly  to  the  inquiry,  What  jurisdiction 
in  the  aggregate  does  the  organic  law  confer,  or  permit  Con- 
gress to  confer,  upon  the  courts  of  the  United  States. 

§  746.  If  we  analyze  and  arrange  the  several  grants  of 
power  conferred,  or  allowed  to  be  conferred,  by  the  Constitu- 
tion, we  shall  find  that  they  may  all  be  referred  to  one  or  the 
other  of  the  two  descriptions  of  jurisdiction  already  mentioned 
—  the  necessary  and  the  supplementary  or  expedient.  The 
necessary  includes  that  jurisdiction  which  is  based  upon  the 
intrinsic  nationality  and  supremacy  of  the  general  govern- 
ment ;  without  which  that  nationality  and  supremacy  would 
have  been  but  a  name.  It  is  evident  that  the  following  parti- 
cular grants  fall  under  this  first  head :  "  cases  in  law  and 
equity  arising  under  the  Constitution  ;  "  "  cases  in  law  and 
equity  arising  under  the  laws  of  the  United  States  ;  "  "  cases 
in  law  and  equity  arising  under  treaties  made,  or  which  shall 
be  made,  by  the  authority  of  the  United  States ;  "  "  cases 
affecting  ambassadors,  other  public  ministers,  and  consuls ;  " 
ik  cases  of  admiralty  and  maritime  jurisdiction  ;"  "  contro- 
versies to  which  the  United  States  shall  be  a  party  ;  "  and 
'  controversies  between  two  or  more  states."  All  these  are 
preeminently  within  the  scope  of  the  national  authority,  and  in 
theory  they  might  well  have  been  expressly  withdrawn  from 
the  state  jurisdiction.  Congress  may  complete  the  work,  and 
2onfer  an  exclusive  authority  over  them  upon  the  Uniteo 
States  courts  ;  it  has  done  so  in  some  instances. 


CASES   UNDER  THE   CONSTITUTION.  507 

§  747.  Cases  arising  under  the  Constitution.  —  We  have 
seen  that  any  national  theory  of  our  scheme  of  government, 
however  partial  it  may  be,  demands  that  the  government  it- 
self should  be  the  final  and  absolute  arbiter  as  to  the  interpre- 
tation of  the  Constitution,  and  as  to  the  extent  of  the  powers 
it  grants  and  the  restrictions  it  contains.  The  check  and  the 
only  check  upon  this  power,  is  the  tripartite  form  of  the  gov- 
ernment, and  the  direct  responsibility  of  the  rulers  to  the 
people.  Assuming  this  proposition  to  be  true,  it  is  plain  that 
the  United  States  judiciary  should  have  the  power  to  decide 
all  cases  arising  directly  under  the  Constitution.  As  has  been 
said  before,  a  perfect  theory  would  have  made  this  function 
exclusive  in  the  national  courts  ;  but  if,  from  some  peculiari- 
ties of  our  political  organization,  it  was  necessary  that  the 
state  tribunals  should  in  many  instances  have  a  concurrent 
jurisdiction  over  the  same  class  of  cases,  their  determinations 
should  not  be  final,  but  should  be  reviewable  by  the  judiciary 
of  the  nation.  The  necessity  of  this  is  evident  to  all  those 
who  do  not  adopt  the  state  sovereignty  theory  and  reject  the 
very  idea  of  one  nationality.  The  Constitution  is  a  unit ;  it 
speaks  to  every  person  within  the  bounds  of  the  whole  coun- 
try ;  it  addresses  itself  in  compulsive  terms  to  the  state  organ- 
izations themselves.  Its  interpretation  should  therefore  be 
the  same  throughout  the  whole  land ;  acts  permitted  under  it 
in  one  portion  or  state,  should  not  be  forbidden  in  another 
This  homogeneity  of  the  law  which  is  declared  to  be  supreme, 
is  absolutely  essential  to  the  continued  existence  of  the  nation. 
But  plainly  such  a  oneness  of  legislation  and  administration 
can  only  be  obtained  by  giving  to  the  judiciary  of  the  United 
States  the  power  of  determining  all  cases  arising  under  the 
Constitution.  Granting  that  the  state  courts  may  have  con- 
current original  jurisdiction  in  some  or  all  of  these  cases,  that 
jurisdiction  must  be  inferior,  and  their  decisions  must  be 
under  the  control  of  the  central  tribunal. 

§  748.  What  are  cases  arising  under  the  Constitution  ? 
They  mr.st  all  be  referable  to  one  or  the  other  of  the  following 
heads  :  (1.)  Where  a  right  is  asserted  between  two  private 
individuals,  claimed  to  flow  from  a  statute  of  Congress,  and 


508  CASES   UNDER  THE   CONSTITUTION. 

the  contention  is  whether  such  statute  was  within  the  powei 
of  Congress  to  pass.  (2.)  Where  an  executive  or  judicial  offi- 
cer of  the  United  States  has  done  some  act,  or  proposes  to  do 
some  act,  and  the  contention  is  whether  the  act  is  authorized 
by  the  Constitution.  (3.)  Where  a  right  is  asserted  between 
two  private  individuals,  claimed  to  flow  from  a  statute  of  a 
state  legislature,  and  the  question  is  whether  such  statute  is 
one  which  the  legislature  was  forbidden  by  the  Constitution  to 
pass.  (4.)  Where  an  executive  or  judicial  officer  of  a  state  has 
done,  or  proposes  to  do  some  act,  ami  the  question  is  whether 
the  act  is  one  forbidden  by  the  Constitution.  All  these  would 
be  cases  arising  under  the  Constitution,  for  their  decision 
would  require  an  interpretation  of  the  organic  law,  and  a 
determination  of  the  powers  granted  and  refused  by  it.  A 
single  illustration  of  each  head  will  suffice.  At  a  late  session 
Congress  passed  a  statute  most  important  in  its  general 
design  and  in  its  special  provisions  which  is  known  as  the  Civil 
Rights  Bill.  Is  this  statute  valid?  It  is  evident  that  if  the 
decision  of  this  question  were  left  to  the  state  judiciary  alone, 
there  would  be  no  uniformity  in  the  rule  adopted.  In  some 
states  the  law  would  be  sustained,  in  others  declared  void;  in 
the  former  the  executive  officers  enforcing  it  would  be  consid- 
ered as  justified  for  their  acts,  in  the  latter  they  would  be 
treated  as  trespassers  and  subjected  to  penalties.  Such  a  con- 
dition of  tinners  would  be  unbearable.  An  act  of  Congress 
should  be  everywhere  valid,  or  everywhere  void.  The  only 
means  of  producing  this  result  is  to  give  a  supreme  and  final 
jurisdiction  over  the  question  to  the  national  courts. 

§  749.  Again :  during  the  late  civil  war,  the  President, 
through  his  subordinates,  caused  numerous  military  arrests  to 
be  made,  and  trials  to  be  had  before  military  commissions. 
Were  these  proceedings  justifiable  ?  Should  the  decision  of 
this  question  be  left  to  the  local  tribunals  alone,  an  officer 
might  be  protected  in  one  commonwealth  from  any  penal  conse- 
quences of  his  acts,  and  punished  in  another  under  exactly  the 
same  circumstances.  Again  :  if  the  jurisdiction  of  the  United 
States  courts  and  judges  was  to  be  determined  by  the  tribunals 
">f  the  several  states,  a  confusion  would  arise  utterly  destruc 


THE   NECESSARY  JURISDICTION.  509 

tive  of  the  whole  system.  A  judgment  of  the  national  courts 
would  be  respected  in  one  state,  and  rights  under  it  would  be 
secure  ;  in  another,  the  same  judgment  would  be  treated  as  a 
nullity.  Finally,  the  Constitution  forbids  the  states  to  pass 
laws  impairing  the  obligation  of  contracts.  If  the  state 
courts  are  to  be  the  sole  judges  of  the  meaning  of  this  clause, 
and  of  what  laws  do  impair  the  obligation  of  contracts,  it 
would  inevitably  follow  that  a  statute  of  the  same  character 
would  be  held  valid  in  one  commonwealth,  and  void  in 
another.  The  uniformity  in  commercial  and  business  transac- 
tions, which  the  Constitution  endeavored  to  secure,  would 
thus  be  destroyed. 

§  750.  These  instances  sufficiently  illustrate  the  nature  of 
cases  arising  under  the  Constitution,  and  the  absolute  neces- 
sity of  making  the  national  judiciary  the  final  and  supreme, 
if  not  the  sole,  arbiter  of  all  such  questions.  In  respect  to 
cases  falling  within  the  third  and  fourth  of  the  preceding 
classes  —  those  growing  out  of  a  state  legislative  or  executive 
act,  —  it  is  evident  that  the  original  jurisdiction  of  the  state 
courts  should  not  be  interfered  with,  should  not  be  in  the  least 
lessened  or  impaired.  Whatever  authority  is  given  to  the 
United  States  judiciary  should  be  entirely  by  way  of  review. 
Congress  has  acted  upon  this  view,  and  has  made  provision 
by  which  the  final  determination  of  the  state  tribunal  may  be 
examined  in  the  Supreme  Court  of  the  United  States  in  cases 
where  the  validity  of  a  state  law  or  authority  was  drawn  in 
question,  and  the  decision  was  in  favor  of  its  validity.1  Con- 
gress has  evidently  failed  to  exercise  its  power  in  this  respect 
to  the  full  extent. 

Those  cases  which  fall  within  the  first  and  second  of  the 
preceding  classes,  which  grow  out  of  a  national  legislative  or 
executive  act,  might  be  withdrawn  completely  from  the  state 
jurisdiction.  Congress  has  not  chosen  to  do  so  in  all  instances. 
But  where  the  local  courts  a>-e  left  to  the  exercise  of  the 
power  to  hear  and  decide,  some  provision  should  be  made  by 
which  the  national  judiciary  may  exert  its  authority.  The 
following  cases  have  been  provided  for.  The  final  determina- 
tion of  the  state  tribunal  may  be   examined  in   the  Supreme 


510     CASES   UNDER  LAWS   OF   THE   UNITED   STATES. 

Court  of  the  United  States,  where  the  validity  of  a  treaty  of 
statute  of,  or  of  an  authority  exercised  under  the  United 
States,  was  drawn  in  question,  and  the  decision  of  the  state 
court  was  against  the  validity.1  In  1833  a  statute  was  passed 
providing  that  when  a  suit  is  commenced  in  a  state  court 
against  an  officer  of  the  United  States  or  other  person,  for  any 
act  done  under  the  revenue  laws,  or  for  or  on  account  of  any 
right,  authority  or  title,  set  up  or  claimed  by  such  officer  or 
person  under  any  such  law,  the  suit  may  be  removed  from  the 
state  court  into  a  circuit  court  of  the  United  States.2  A  simi- 
lar power  of  removal  has  been  since  extended  to  acts  done 
under  other  statutes  or  under  other  species  of  authority  of  the 
United  States.3  Congress  has  thus  partially  legislated,  whereas 
its  ability  to  legislate  completely  is  certain.  If  it  may  allow 
the  suitors  at  their  option  to  withdraw  a  case  which  arises  under 
the  Constitution  or  laws  of  the  United  States,  from  the  state 
jurisdiction,  it  may  by  one  blow,  prohibit  that  jurisdiction  alto- 
gether. 

§  751.  Cases  arising  under  the  Laws  of  the  United  States. — 
Many  cases  arising  under  the  laws  of  the  United  States,  will 
also  arise  under  the  Constitution.  This  is  true  of  all  those 
which  draw  in  question  the  validity  of  the  law.  But  there 
are  others  which  assume  the  law  to  be  valid,  and  put  a  con- 
struction thereon  ;  which  ascertain  the  rights  of  persons  affected 
by  it ;  which  examine  the  acts  of  ministerial  officers  done 
in  virtue  thereof,  and  determine  whether  these  acts  are  war- 
ranted by  the  statute.  The  national  judiciary  should  cer- 
tainly possess  a  jurisdiction  in  all  such  cases,  and  in  the  exer- 
cise thereof  should  be  supreme.  Unless  this  were  established, 
the  positive  legislation  of  Congress  would  become  a  chaos. 
Indeed,  it  is  difficult  to  see,  in  reference  to  many  classes  of  sta- 
tutes, that  the  state  courts  should  have  any  authority  at  all ; 
the  subject-matter  of  the  legislation  is  such  that  it  seems  to 
fall  exclusively  under  the  national  control.  A  single  example 
will  illustrate  this  proposition.  Congress  establishes  a  system 
)f  duties  to  be  paid  upon  imported  goods.     Revenue  laws  are 

1  See  "  Judiciary  Act"  of  1789,  §  25.         a  4  Statutes  at  Large,  632. 
3  Statute  of  March  3,  1863. 


THE  NECESSARY  JURISDICTION.  511 

always  complicated,  and  require  judicial  interpretation.  The 
rate  of  duty  payable  upon  a  particular  article  may  have  been 
left  uncertain,  and  must  be  established.  This  rate  must  be 
uniform  for  all  parts  of  the  country.  If  the  state  courts  may 
entertain  cases  of  this  description,  and  put  a  construction  upon 
a  revenue  law,  there  would  be  no  actual  uniformity  throughout 
the  United  States,  and  the  practical  evils  which  existed  under 
the  old  Confederation  would  be  revived.  Congress  has  been 
partially  influenced  by  these  considerations,  and  in  sume  in- 
stances has  conferred  an  exclusive  jurisdiction  upon  the  na- 
tional courts,  while  in  others  it  has  provided  for  a  removal  of 
suits  to  those  courts.  In  all  those  cases  where  the  state  courts 
are  permitted  to  have  a  concurrent  jurisdiction,  it  is  provided 
that  their  final  judgment  may  be  reviewed  by  the  Supreme 
Court  of  the  United  States  when  a  statute  or  treaty  of  the  Uni- 
ted States  was  drawn  in  question,  and  the  decision  was  against 
the  right  claimed  by  either  party  under  the  statute  or 
treaty.1 

§  752.  Cases  arising  under  Treaties.  —  The  general  govern- 
ment has  exclusive  control  over  foreign  relations  ;  it  alone  has 
power  to  enter  into  treaties  ;  these  treaties  are  made  by  the 
Constitution  the  supreme  law  of  the  land.  The  states  are  ex- 
pressly forbidden  to  make  any  treaties  or  alliances  ;  they 
are  not  officially  known  in  dealings  with  foreign  communities. 
The  general  government  is  therefore  charged  with  the  most 
important  duty  of  preserving  its  own  rights  and  those  of  its 
citizens  against  other  peoples  and  states,  and  of  observing  its 
own  liabilities  and  those  of  its  citizens  towards  such  peoples.  It 
is  responsible  for  any  and  all  infractions  of  treaties  done  either 
in  its  own  name  and  by  its  own  direction,  or  by  any  other 
authority,  or  by  any  private  citizen.  Where  the  responsibility 
rests,  the  power  should  also  reside.  It  is  therefore  the  prov- 
ince of  the  national  government  to  give  construction  to 
treaties,  and  to  judge  of  rights  and  liabilities  arising  there- 
from. This  function  does  not  belong  to  the  states,  at  least 
Snally  and  supremely.  For  these  reasons  it  is  evident  that  the 
judicial  department  of  the  United  States  must  have  jurisdic- 
1  Judiciary  Act  of  1789,  §  25. 


512  CASES  AFFECTING  AMBASSADORS. 

tion  over  all  cases  arising  under  treaties,  and  that  this  juris- 
diction should  bo  either  exclusive,  or,  if  shared  by  the  state 
courts,  should  be  supreme  over  those  local  tribunals.  As 
private  rights  of  property  are  often  based  upon  the  stipulations 
of  treaties,  and  as  the  state  courts  have  a  very  general  power 
to  adjudicate  upon  this  class  of  rights,  it  has  not  been  deemed 
expedient  to  withdraw  from  them  all  jurisdiction  over  cases 
arising  under  treaties  ;  the  control  of  the  nation  has  been  pre- 
served by  the  provisions  made  for  a  review  stated  in  preceding 
paragraphs. 

§  753.  Cases  affecting  Ambassadors,  oilier  public  Ministers, 
and  Consuls.  —  The  considerations  which  were  adverted  to 
under  the  preceding  head,  apply  with  equal  force  to  this.  The 
exclusive  control  over  foreign  relations  extends  to  the  cases  of 
public  ministers  as  well  as  to  treaties.  But  there  is  another 
consideration  especially  applicable  to  these  foreign  representa- 
tives. Ambassadors  and  other  public  ministers  are,  by  the 
International  Law,  exempt  to  a  very  great  extent  from  the 
civil  and  criminal  jurisdiction  of  the  country  in  which  they 
reside.  The  exceptions  to  this  rule  are  few  in  number,  special 
in  character,  and  based  upon  state  necessities.  Any  interfer- 
ence with  a  foreign  minister  in  violation  of  this  rule  is  an 
insult  to  the  independence  and  sovereignty  of  the  nation 
which  he  represents.  The  interference  is  a  crime  of  state 
against  the  government  to  which  the  ambassador  is  accredited, 
and  demands  an  apology  and  reparation  from  that  government 
proportioned  to  the  offence.  By  our  Constitution  the  national 
authorities  are  solely  responsible  for  the  observance  of  these 
rules  of  the  International  Law ;  they  alone  may  judge 
whether  the  act  of  the  foreiom  minister  be  such  as  to  bring 
him  within  the  exceptions  to  those  rules  ;  they  alone  should 
have  jurisdiction  of  all  cases  affecting  this  class  of  officials. 
Were  the  state  courts  to  assume  the  jurisdiction,  they  would 
not  be  restrained  by  the  sense  of  responsibility  for  their  acts  ; 
and  if  they  were  uncontrolled  by  the  central  government, 
they  might,  at  any  time,  jeopard  the  relations  existing  between 
us  and  foreign  powers.  As  consuls  do  not  by  the  International 
Law,  enjoy  any  such  immunity,  the  reasons  are  not  so  strong 


THE   NECESSARY  JURISDICTION.  513 

for  conferring  an  exclusive  jurisdiction  over  them  upon  the 
national  tribunals.  But  as  they  are  foreign  representatives, 
acting  under  a  foreign  commission,  charged  with  the  duty  of 
protecting  foreign  commercial  interests,  and  often  particularly 
mentioned  in  treaties,  it  was  thought  proper  to  place  them 
unclei  the  control  of  the  same  courts.  The  Constitution  gives 
to  the  Supreme  Court  an  original  jurisdiction  in  this  class  of 
cases.  The  "  Judiciary  Act "  of  1789  made  this  jurisdiction 
exclusive  in  all  actions  brought  against  an  ambassador  or  other 
foreign  minister,  but  concurrent  only  in  those  brought,  by 
ambassadors  and  other  foreign  ministers,  and  in  those  where  a 
consul  is  a  party.  It  may  be  that  the  Constitution,  by  its  very 
terms,  deprives  the  state  courts  of  all  authority  in  any  of  these 
cases ;  at  all  events,  the  question  can  hardly  be  considered  as 
definitely  settled. 

§  754.  Cases  of  Admiralty  and  Maritime  Jurisdiction.  —  As 
the  Congress  of  the  United  States  has  power  to  regulate  com- 
merce, and  as  admiralty  extends  over  the  high  seas  beyond 
the  territorial  limits  of  any  particular  state,  it  seems  peculiarly 
necessary  for  the  national  courts  to  have  jurisdiction  in  cases 
of  this  description.  One  class  of  proceedings  falling  under  the 
general  head  of  admiralty,  should  confessedly  be  within  the 
exclusive  authority  of  the  United  States  tribunals.  As  the 
general  government  can  alone  carry  on  war,  and  as  all  cap- 
tures are  made  by  it  or  under  its  authority,  and  as  it  is  respon- 
sible to  neutral  nations  for  the  observance  of  neutral  rights, 
all  questions  of  prize  taken  in  maritime  war  must  be  deter- 
mined by  the  national  courts  alone.  But  the  Supreme  Court' 
of  the  United  States  has  very  recently  decided  in  The  Moses 
Taylor1  and  The  Hine  v.  Trevor2  that  the  grant  of  the  Con- 
stitution and  the  legislation  of  Congress  thereunder  have  con- 
ferred  an  exclusive  jurisdiction  in  all  civil  cases  of  admiralty 
upon  the  courts  of  the  nation,  and  that  this  jurisdiction  extends 
to  the  great  inland  navigable  rivers  and  lakes,  as  well  as  to  the 
tide  waters. 

§  755.    Controversies   to   which   the   United  States   shall  be 

i  4  Wallace's  R.  411.  *  Ibid.  555. 

33 


514  CONTROVERSIES  BETWEEN  STATES. 

a  party.  —  As  the  United  States  is  supreme,  sovereign,  and 
independent,  it  should  not  be  compelled  to  sue  in  the  courts 
of  another  commonwealth,  but  should  be  able  to  bring  actions 
ill  its  own  tribunals.  This  is  particularly  the  case  when  the 
proceeding  is  against  a  person  prosecuted  for  a  crime.  It 
would  hardly  be  consistent  with  the  dignity  of  the  nation  for 
it  to  enforce  its  penal  laws  in  the  courts  of  a  subordinate  power. 
In  respect  to  civil  actions  the  reasons  are  not  so  imperative. 
There  is  nothing  in  the  nature  of  things  to  prevent  one  nation 
from  prosecuting  a  private  suit  in  the  courts  of  another,  but  it 
should  certainly  be  able  to  do  so  in  its  own. 

§  756.  Controversies  between  two  or  more  States.  —  Juris- 
diction in  these  proceedings  belongs  to  the  nation  as  a  part 
of  its  paramount  sovereignty.  As  the  several  states  stand 
towards  each  other  in  a  condition  of  equality,  none  could, 
without  its  consent,  be  sued  in  its  own  courts,  much  less  be 
compelled  to  appear  and  answer  in  those  of  the  prosecuting 
commonwealth.  But  as  the  states  stand  towards  the  general 
government  in  a  condition  of  subordination,  they  may  well 
implead  each  other  in  the  tribunals  of  their  superiors. 

§  757.  The  foregoing  enumeration  exhausts  the  list  of  cases 
in  which  the  United  States  possesses  a  jurisdiction  which  is 
necessary,  which  is  a  part  of  its  essential  attribute  of  para- 
mount sovereignty.  It  will  be  noticed  that  in  all  except  the 
cases  of  ambassadors,  those  to  which  the  United  States  is  a 
party,  and  those  between  two  or  more  states,  the  jurisdiction 
is  based  upon  the  subject-matter  of  the  controversy,  without 
any  reference  to  the  character  or  situation  of  the  parties  ;  while 
in  the  three  instances  named  the  jurisdictional  fact  is  the  char- 
acter of  the  parties  without  any  reference  to  the  subject-matter 
of  the  controversy  or  the  nature  of  the  cause  of  action.  The 
principles  which  lie  at  the  bottom  of  the  judicial  system  of  the 
United  States,  and  which  determine  the  extent  of  jurisdiction 
granted  by  the  Constitution,  and  the  particular  applications 
of  those  grants  which  Congress  has  authority  to  make,  were 
discussed  in  the  most  exhaustive  manner,  and  settled  in  ac- 
cordance  with  the  national  idea  in  the  early  cases  of  Martin  v 


THE   SUPPLEMENTARY    "URISDICTION.  515 

Hunter's  Lessee  1  and  Cohens  v.  Virginia,2  and   in   the  more 
recent  case  of  Ablemann  v.  Booth.3 

§  758.  The  supplementary  jurisdiction,  or  that  based  entirely 
upon  considerations  of  expediency.  —  The  grants  of  judicial 
power  referable  to  this  head  are  plainly  the  following :  "  Con- 
troversies between  a  state  and  citizens  of  another  state ; " 
controversies  between  citizens  of  different  states  ;"  "  contro- 
versies between  citizens  of  the  same  state  claiming  lands  under 
grants  of  different  states  ;  "  and  "  controversies  between  a  state 
or  citizens  thereof,  and  foreign  states,  citizens,  or  subjects." 
The  peculiar  reasons  for  conferring  a  power  to  hear  and  decide 
these  controversies,  have  already  been  alluded  to.  They  are 
all  summed  up  in  the  desire  to  furnish  a  tribunal  free  from 
partisan  influences  in  those  cases  where  it  was  feared  lest  local 
interests  might  prevent  perfect  justice  being  done  to  suitors. 
When  we  examine  these  several  grants  of  power,  we  perceive 
that,  with  one  exception,  the  jurisdictional  fact  is  found  in  the 
peculiar  character  and  situation  of  the  parties,  and  has  no  ref- 
erence to  the  subject-matter  of  the  controversy.  If  the  parties 
fall  within  the  terms  of  the  requirement,  there  is  no  constitu 
tional  restriction  placed  upon  the  causes  of  action  which  may 
be  the  foundation  of  suits. 

§  759.  Is  the  jurisdiction  included  within  these  several 
grants  exclusively  in  the  national  courts,  or  held  by  them 
concurrently  with  the  state  tribunals  ?  Plainly  the  latter  is 
the  true  interpretation  of  the  Constitution.  In  all  these 
cases,  the  judiciary  of  the  United  States  is  not  wielding  a 
power  which  belongs  to  it  of  right,  of  necessity,  but  one 
which  the  state  judges  may  also  wield  ;  a  power  relating  en- 
tirely to  state  laws,  to  rights  and  duties  flowing  from  state  legis- 
lation. For  the  same  reason  this  jurisdiction  is  not  supreme; 
the  decisions  of  the  national  courts  by  virtue  thereof  are  not 
binding  upon  those  of  the  states.  These  courts  are  not  inter- 
preting or  enforcing  the  law  of  the  United  States  in  any  of  its 
forms  ;  they  are  interpreting  and  enforcing  the  law  of  the  par- 
ticular state  in  which  the  controversy  arose.    The  suitor,  there- 

i  1  Wheaton's  R.  304.  2  6  Wheatou's  R.  264 

3  21  Howard's  R.  506. 


516  THE   SUPPLEMENTARY  JURISDICTION. 

fore,  can  only  demand  that  his  rights  shall  be  secured  according 
to  a  just  view  of  the  local  law  from  which  those  rights  are 
claimed  to  flow.  The  single  duty  of  the  national  judges  is  to 
secure  those  rights  according  to  their  best  understanding  of 
that  law  ;  they  cannot  insist  that  their  interpretation  and  their 
judgments  shall  be  taken  as  a  guide  by  the  state  tribunals  in 
any  subsequent  cases.  As  a  practical  consequence  of  this  prin- 
ciple there  need  not  be,  indeed  there  cannot  be,  any  uniformity 
in  the  decisions  of  the  United  States  judiciary  made  under  this 
branch  of  their  general  authority.  As  there  is  great  diversity 
in  the  state  legislation,  and  as  the  courts  of  the  nation  simply 
expound  and  apply  that  legislation,  there  must  be  a  similar 
diversity  in  the  results  of  their  labor.  The  practice  of  the 
Supreme  Court  of  the  United  States  is  therefore  firmly  settled, 
that  in  all  controversies  falling  within  this  department  of  their 
jurisdiction,  they  will  follow  the  statutes  and  authoritative  de- 
cisions of  the  local  courts  which  have  defined  and  established 
the  law  of  the  commonwealth  where  the  cause  of  action  arose-1 

§  760.  It  is  not  in  accordance  with  rny  plan  to  describe  the 
various  national  courts  and  the  distribution  of  powers  among 
them.  A  few  important  and  general  rules,  however,  which 
seem  to  form  a  part  of  our  Constitutional  Law,  may  well  be 
stated. 

The  broad  principle  which  lies  at  the  bottom  of  these  rules, 
and  which  was  not  established  without  a  very  vigorous  dissent 
from  many  able  jurists  and  statesmen,  is,  that  the  national 
courts  have  no  common  law  jurisdiction  whatever,  and  that  all 
the  powers  they  possess  must  be  referred  to  the  grants  of  the 
Constitution,  or  to  these  grants  and  laws  of  Congress  passed  in 
pursuance  thereof. 

1  See  Luther  v.  Borden,  7  Howard's  R.  1  :  Phalen  v.  Virginia,  8  lb. 
163:  Webster  v.  Cooper,  14  lb.  504:  Beauregard  o.  New  Orleans,  18  lb. 
497  :  Gelpcke  v.  Dubuque,  1  Wallace's  R.  175.  It  has  been  held,  however, 
that  upon  questions  depending  upon  general  commercial  law,  or  upon  gen- 
eral equity  jurisprudence,  the  court  will  not  be  bound  by  the  decisions  of 
the  state  courts.  This  rule  seems  to  be  inconsistent  with  the  principles 
which  should  guide  the  court  in  this  branch  of  its  jurisdiction.  See  Swift 
v.  Tyson,  16  Peters'  R.  1  :  Watson  v.  Tarpley,  18  Howard's  R.  517,  520. 
Neves  v.  Scott,  13  lb.  268:  Nichols  v.  Levy,  5  Wallace's  R.  433. 


JURISDICTION  REGULATED  BY   CONGRESS.  517 

The  Supreme  Court  has  an  original  jurisdiction  in  all 
cases  affecting  ambassadors,  other  public  ministers,  and  consuls, 
and  in  those  to  which  a  state  shall  be  a  party.  This  original 
authority  cannot  be  abridged,  —  nor,  on  the  other  hand,  can  it 
be  extended,  by  the  legislature.1 

In  all  other  cases  mentioned  in  Article  III.  Section  II.,  the 
Supreme  Court  has  appellate  jurisdiction,  "  with  such  excep- 
tions and  under  such  regulations  as  Congress  shall  make." 
All  appellate  jurisdiction  must  therefore  be  exercised  in  pur- 
suance of  positive  statutes  which  must  themselves  fall  within 
the  constitutional  grants.  In  fact,  the  legislation  of  Congress 
has  fallen  far  short  of  the  limits  set  by  the  organic  law.2 

In  all  cases  excepting  those  affecting  foreign  representatives, 
and  those  in  which  a  state  is  a  party,  the  original  jurisdiction 
is  therefore  given  to  "  such  inferior  courts  as  Congress  may, 
from  time  to  time,  ordain  and  establish."  The  legislature  has 
complete  discretion  in  the  creation  of  these  subordinate  tri- 
bunals ;  it  may  allot  powers  and  distribute  jurisdiction  at  will ; 
it  may  confer  upon  them  all  the  authority  permitted  by  the 
Constitution  to  be  given,  or  may  grant  but  a  small  portion 
thereof.  As  a  matter  of  fact,  Congress  has  been  very  unwill- 
ing to  clothe  the  national  courts  with  all  the  functions  which 
the  Constitution  recognizes  as  appropriate  for  them.  The  fol- 
lowing principle  results  from  these  facts  :  The  inferior  courts 
possess  no  powers  whatever  except  those  included  in  the 
terms  of  statutes  passed  in  pursuance  of  the  Constitution.  If 
the  power  invoked  cannot  be  found  in  the  statute,  it  does  not 
exist,  even  though  it  plainly  falls  within  some  general  clause  of 
Article  III.  Section  II.  If  the  power  be  statutory,  it  is  still 
a  nullity  if  it  transcends  the  scope  of  the  constitutional  grant.3 
The  same  principle  has  been  applied  to  jurisdiction  over  crim- 
inals.    There  are  no  common  law  crimes  within  the  authority 

i  Marbury  v.  Madison,  1  Cranch's  R.  137. 

2  Wiscart  v.  Dauehy,  3  Dallas'  R.  321 :  Clarke  v.  Bazaclone,  1  Cranch's 
R.  212  :  United  States  v.  Moore,  3  Cranch's  R.  159  :  Durousseau  v.  United 
States,  6  Cranch's  R.  307:  Ex  parte  Kearney,  7  Wheaton's  R.  38:  Ex 
oarte  Watkins,  3  Peters'  R.  193. 

3  Mossman  v.  Higgenson,  4  Dallas'  R.  12:  Hodgson  v.  Bowerbank,  5 
Cranch's  R.  303  :  Bank  of  U.  S.  v.  Deveaux,  5  Cranch's  R.  61. 


518  JURISDICTION  REGULATED  BY   CONGRESS. 

of  the  national  courts ;  they  must  go  to  statutes  of  Congress 
alone  as  guides  to  determine  what  constitutes  an  offence 
against  the  United  States.1 

1  Ex  parte  Bollman,  4  Cranch's  R.  75 :  United  States  v.  Hudson,  7 
Cranch's  R.  32  :  United  States  v.  Coolridge,  1  Whcaton's  R.  415  :  United 
States  v  Bevans,  3  Wheaton's  R.  336. 


AN  APPENDIX 

CONTAINING  ALL  THE  IMPORTANT  MATTERS  DISCUSSED  AND  DR. 
CIDED  BY  THE  SUPREME  COURT  OF  THE  UNITED  STATES  SINCE 
THE  PUBLICATION  OF  THE  FIRST  EDITION. 

§  761.  Since  the  original  publication  of  this  work  the  XlVth  and 
XV th  Amendments  of  the  Constitution  have  been  adopted.  The 
former,  which  had  already  been  submitted  to  the  state  legislatures, 
is  briefly  discussed  in  the  text ;  the  latter  is  simply  referred  to  as  a 
proposed  measure.  The  theoretical  principles  of  construction,  and 
the  positive  rules  of  the  public  law  resulting  therefrom,  have  been 
applied  by  the  courts  to  new  circumstances  and  relations,  and  have 
thus  been  more  fully  explained,  enlarged,  or  limited.  In  no  instance 
has  any  proposition  or  doctrine  stated  in  the  text  been  expressly  de- 
clared erroneous  and  rejected  by  the  Supreme  Court  of  the  United 
States  ;  a  portion  of  the  reasoning,  however,  in  reference  to  the  su- 
premacy of  the  national  government  over  the  States  in  the  exercise 
of  its  taxing  function  must  be  modified,  and  the  unlimited  powers 
claimed  for  Congress  over  this  subject  matter  must  be  considered  as 
curtailed,  in  consequence  of  certain  decisions  recently  made  by  that 
high  tribunal.  With  this  single  exception  no  change  or  amendment 
is  needed  in  the  conclusions  which  I  have  reached. 

Although  no  substantial  alteration  is  required  in  the  text,  yet  some 
additions  are  necessary  in  order  to  present  the  general  principles  of 
our  public  law  as  they  now  exist,  and  as  they  have  been  further  de- 
veloped in  the  steady  progress  of  judicial  construction.  This  new 
matter  will  be  arranged  in  an  order  corresponding  with  that  pursued 
ji  the  body  of  the  work,  and  the  reader  or  student  can  thus  ascer- 
tain whether  any  particular  doctrine  has  received  additional  illustra- 
tion, has  been  pushed  to  further  extremes,  or  has  been  restricted 
within  narrower  bounds. 

Tlie  Essential  Nature  of  the  United  States  as  a  Political  Society. 

§  762.  The  theory  of  a  nationality  antecedent  to  the  present  Con 
?titution,  and  of  the  States  as  necessary  parts  of  the  political  system, 


520  NATURE   OF  THE  FEDERAL  UNION. 

has  been  accepted  by  the  Supreme  Court  in  the  most  positive  terms, 
and  must  hereafter  be  regarded  as  the  basis  of  all  judicial  construc- 
tion which  seeks  to  sustain  the  intrinsic  sovereignty  of  the  United 
States,  and  to  protect  the  rights  of  the  States  as  organic  elements  of 
the  body  politic.  In  Lane  County  v.  Oregon,1  Chief  Justice  Chase 
said  :  "  The  people  of  the  United  States  constitute  one  nation  under 
one  government,  and  this  government,  within  the  scope  of  the  pow- 
ers with  which  it  is  invested,  is  supreme.  On  the  other  hand,  the 
people  of  each  state  compose  a  state  having  its  own  government 
and  endowed  with  all  the  functions  essential  to  separate  and  inde- 
pendent existence.  The  States  disunited  might  continue  to  exist. 
Without  the  States  in  Union  there  could  be  no  such  political  body  as 
the  United  States.  Both  the  States  and  the  United  States  existed 
before  the  Constitution.  The  people,  through  that  instrument,  es- 
tablished a  more  perfect  union  by  substituting  a  national  govern- 
ment acting  with  ample  power  directly  upon  the  citizens,  instead  of 
the  confederate  government  which  acted  with  powers  greatly  re- 
stricted only  upon  the  States.  But  in  many  articles  of  the  Consti- 
tution the  necessary  existence  of  the  States,  and  within  their  proper 
spheres  the  independent  authority  of  the  States,  is  distinctly  recog- 
nized. To  them  nearly  the  whole  charge  of  interior  regulation  is 
committed  or  left ;  to  them  or  to  the  people  all  powers  not  expressly 
delegated  to  the  national  government  are  reserved.  The  general 
condition  was  stated  by  Mr.  Madison  in  the  '  Federalist,'  thus :  '  The 
federal  and  state  governments  are  in  fact  but  different  agents  and 
trustees  of  the  people,  constituted  with  different  powers  and  desig- 
nated for  different  purposes.' " 

The  same  doctrine  was  again  announced  and  made  the  very  basis 
of  decision,  in  the  great  case  of  Texas  v.  Chiles.2  In  the  year 
1867,  before  its  relations  with  the  nation  had  been  restored,  and  a 
state  government  had  been  established  and  recognized  as  permanent 
by  Congress,  Texas  commenced  a  suit  in  the  Supreme  Court  under 
a  clause  of  the  Constitution  which  gives  to  that  tribunal  an  original 
jurisdiction  in  controversies  between  a  state  and  certain  other  par- 
ties. Unless  Texas  was  a  state,  within  the  meaning  of  the  organic 
law,  the  suit  could  not  be  maintained,  and  the  objection  having  been 
raised  by  the  defendant  that  it  was  not  a  state,  the  court  was  com- 
pelled to  pass  upon  the  question  in  limine.  Chief  Justice  Chase, 
after  describing  the  various  significations  which  may  be  given  to  the 
word  "  State,"  and  distinguishing  between  the  state  and  the  govern 
i  7  Wallace,  71,  76.  2  ibid.  700 


RELATION   OF   THE    STATES   TO   THE   UNION.  521 

ment  thereof,1  proceeds  as  follows  :  2  "  The  Union  of  the  States 
never  was  a  purely  artificial  and  arbitrary  relation.  It  began  among 
the  colonies.  It  was  confirmed  and  strengthened  by  the  necessities 
of  the  war,  and  received  definite  form  and  character  and  sanction 
from  the  Articles  of  Confederation.  By  these  the  Union  was  sol- 
emnly  declared  to   be   perpetual But   the  perpetuity   and 

indissolubility  of  the  Union  by  no  means  imply  the  loss  of  distinct 
and  individual  existence  or  of  the  right  of  self-government  by  the 
States."  Repeating  the  language  which  he  had  used  in  the  case 
before  quoted,  he  adds :  u  Not  only  therefore  can  there  be  no  loss 
of  separate  and  independent  autonomy  to  the  States,  through  their 
union  under  the  Constitution,  but  it  may  not  be  unreasonably  said 
that  the  preservation  of  the  States  and  the  maintenance  of  their 
governments  are  as  much  within  the  design  and  care  of  the  Consti- 
tution as  the  preservation  of  the  Union  and  the  maintenance  of  the 
national  government.  The  Constitution  in  all  its  provisions  looks 
to  an  indestructible  union  composed  of  indestructible  states."  In 
accordance  with  this  reasoning,  it  was  held  that  the  States  joining 
in  the  secession  at  no  time  ceased  to  be  component  parts  of  the 
nation ;  that  throughout  the  entire  period  of  attempted  separation, 
they  possessed  their  political  character  as  States  ;  but  that  their 
governments  became  illegal,  were  thrown  out  of  relation  with  the 
national  government,  and  required  to  be  reorganized  and  restored 
to  their  normal  position.3  To  these  extracts  I  add  by  way  of  com- 
ment some  observations  which  have  been  already  published  in 
another  place,  but  which  were  professedly  based  upon  these  decisions. 
"  In  these  opinions  the  Supreme  Court,  for  the  first  time  in  its  entire 
history,  struck  the  solid  ground  of  historic  fact,  and  announced  a 

1  7  Wall.  720,  721. 

2  Ibid.  pp.  724,  725. 

3  It  may  not  be  inappropriate  to  quote  a  sentence  from  a  letter  written 
to  me  by  Chief  Justice  Chase,  dated  August  9,  1869,  shortly  after  the 
appearance  of  the  decisions  above  mentioned.  He  says  :  "  You  have 
doubtless  seen  some  traces  of  your  own  thinking  in  the  late  judgment  of 
the  Supreme  Court  in  the  case  of  Texas  v.  Chiles.  That  opinion  was 
very  much  discussed,  especially  by  the  judges  who  concurred  in  it,  and 
may,  I  think,  be  regarded  as  a  tolerably  correct  expression  of  the  views 
pf  the  court  as  to  the  nature  of  the  national  Union,  of  its  relations  to  the 
States,  and  of  the  principles  of  reorganization  of  States  disorganized 
oy  rebellion,  and  of  the  restoration  of  national  relations  interrupted  by 
'.ivil  war." 


522  NATURE   OF   THE   FEDERAL   UNION. 

theory  which  defines  and  preserves  both  the  inherent  nationality  of 
the  United  States,  and  the  separate  existence,  necessity,  and  local 
rights  of  the  several  Slates.  By  this  theory  the  States  did  not 
create  the  Constitution  and  the  nation,  nor  is  the  people  found  in 
existence  for  the  first  time  in  the  preamble.  Historically,  the  nation 
preceded  the  Constitution  ;  it  took  its  rise  with  the  first  united  move- 
ment of  the  colonies.  The  national  idea  springing  out  of  their 
common  origin,  interests,  and  necessities,  found  its  first  opeu  expres- 
sion in  their  resistance  to  Great  Britain  ;  it  was  strengthened  by  the 
war;  it  was  triumphant  in  the  Declaration  of  Independence  ;  it  was 
incorporated  in  the  feeble  Articles  of  Confederation  ;  and  it  was 
finally  perfected  in  the  Constitution.  The  court  has  at  last  found  a 
firm  basis,  —  firm,  because  historically  and  logically  true,  —  upon 
wdiich  to  rest  the  supreme  nationality  of  the  United  States  ;  and  we 
believe  that  this  theory,  which  has  now  received  the  approval  of 
the  Supreme  Court,  will  soon  be  accepted  by  all  parties,  and  will 
become  one  of  the  first  principles  of  our  constitutional  law.  But 
while  the  court  thus  placed  the  nation  upon  a  sure  foundation,  it 
defined  the  status  of  the  States,  and  asserted  their  necessary  ex- 
istence and  peculiar  rights  in  a  manner  no  less  clear  and  cei  tain. 
Historically,  the  States  existed  also  from  the  beginning.  The  Con- 
stitution recognized  them,  and  provided  for  the  creation  of  new  ones. 
The  government  which  the  nation  called  into  being  is  built  upon  the 
States  as  separate  societies  ;  without  them  it  would  vanish.  They 
and  their  separate  and  local  rights  and  powers  are  inseparably  bound 
up  with  it,  and  cannot  be  destroyed  without  blotting  out  the  present 
system.  The  Supreme  Court  has  thus,  in  this  judgment,  placed  the 
nation  and  the  States  upon  exactly  the  same  footing ;  whoever 
weakens  the  one,  weakens  the  other  ;  whoever  denies  the  historic 
origin  of  the  one,  denies  the  same  origin  of  the  other.  As  we 
have  in  this  theory  the  greatest  security  for  the  nation,  we  have 
also  the  greatest  security  for  the  several  states  ;  so  that  it  may  be 
adopted  with  equal  faith  by  those  who  would  maintain  the  suprem- 
acy of  the  Union,  and  by  those  who  would  preserve  local  self-gov- 
ernment." * 

Implied  Limitations  upon  the  Power  of  the  National  Government. 

§  763.  The  implied  powers  of  Congress  and  the  limitations  thereon 
tvere  exhaustively  discussed  in  the  now  celebrated  cases  of  Hepburn  v 

1  The  Nation,  for  June  29,  1871. 


IMPLIED  POWERS  OF  TIIE  NATIONAL  GOVERNMENT.    523 

Giris wold,1  and  "The  Legal  Tender  Cases,"  or  Knox  v.  Lee.2  In 
the  earlier  of  these  adjudications  the  provision  of  the  statute  which 
declares  that  United  States  Treasury  notes  shall  be  a  good  legal 
tender  in  payment  of  all  private  debts  and  demands  existing  at  the 
time  of  its  passage,  was  by  a  majority  of  the  judges  pronounced 
invalid.  In  the  later  ones,  the  same  tribunal,  some  change  having 
in  the  mean  time  been  made  in  its  membership,  retraced  its  steps, 
overturned  its  prior  decision,  and  affirmed  the  validity  of  the  pro- 
vision in  question.  In  its  judgments  in  both  these  cases  the  court 
entered  largely  into  the  doctrine  of  "  implied  powers,"  and  especially 
into  a  construction  of  the  18th  subdivision  of  Section  8  of  the  first 
Article,  which  authorizes  Congress  "  to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution  "  the  general 
powers  conferred  upon  the  government.  In  neither  of  these  cases, 
however,  did  it  profess  to  adopt  any  new  rule  of  interpretation,  or 
to  create  any  new  limitation  ;  the  decisions  purported  to  be  based 
upon  the  same  prior  precedents,  and  to  carry  into  effect  the  princi- 
ples which  had  first  been  announced  by  Chief  Justice  Marshall  and 
his  judicial  compeers.  In  Hepburn  v.  Griswold,  the  prevailing 
opinion  reached  the  final  conclusion  that  the  legal  tender  clause  was 
not  "  necessary  and  appropriate  "  —  that  it  was  not  "  plainly  adapted 
to  the  end  sought  to  be  attained  "  —  to  the  exercise  of  any  of  the 
legislative  powers  enumerated  in  the  Constitution.  The  difference 
between  the  positions  taken  by  the  court  in  these  conflicting  judg- 
ments lies  not  in  the  statement  of  any  general  principles,  but  rather 
in  their  application  to  the  particular  subject  matter  under  considera- 
tion. The  judges  who  united  in  deciding  the  later  cases  —  Knox  v. 
Lee,  and  others  —  saw  in  the  "  legal  tender  clause  "  a  sufficiently 
"  necessary  and  appropriate  "  means  for  carrying  into  effect  several 
of  the  great  powers  granted  to  Congress,  especially  the  power  to 
borrow  money,  to  raise  and  maintain  armies  and  navies,  and  to  carry 
on  war.  The  reasoning  and  conclusion  of  the  court  in  these  last 
cases  would  lead  to  the  following  definite  rule  for  determining  the 
extent  of  legislative  powers,  applicable  to  all  possible  circumstances. 
If  a  particular  measure  has  such  a  connection  or  relation  with  one 
or  more  of  the  enumerated  powers  granted  to  Congress  or  to  the 
government,  that  it  can  be  seen  in  any  degree  or  under  any  state  of 
circumstances  to  promote  the  efficiency  of  such  power,  —  or  in  other 
words,  that  such  power  can  be  seen  to  be  made  in  any  degree  or 
mder  any  circumstances  operative  through  its  instrumentality, — 
1  8  Wall.  603.  2  12  Wall.  457. 


52-1    EXPRESS  LIMITATIONS  ETON  THE  STATES. 

then  tlic  measure  is  within  the  competency  of  Congress  to  enact  ; 
that  body  alone  is  the  judge  of  the  closeness  of  the  relation  or  the 
extent  and  degree  of  the  efficiency,  and  having  judged,  the  courts 
cannot  review  its  decision.  The  same  doctrine  may  be  expressed  in 
another  form  :  It  is  not  within  the  province  of  the  courts,  in  the 
exercise  of  their  function  of  examining  into  the  validity  of  statutes, 
to  pass  upon  a  question  which,  when  reduced  to  its  lowest  terms,  is 
one  purely  of  political  economy. 

Express  Limitations  upon  Congress  and  upon  the  State  Legislatures, 
including  the  Provisions  for  the  Protection  of  Citizens  and  of 
their  Rights. 

§  764.  Those  provisions  of  the  Constitution,  including  the  14th 
Amendment,  which  prohibit  state  legislation  infringing  upon  the 
rights,  privileges,  and  immunities  of  citizens,  have  received  much 
attention  within  the  past  few  years,  and  the  true  meaning  to  be 
given  to  them  has  been  fully  established.  A  series  of  very  care- 
fully considered  cases  have  interpreted  the  second  Section  of  Article 
IV.  ;  and  they  were  followed  by  other  remarkable  adjudications 
which,  after  the  most  exhaustive  discussion,  have  settled  the  prin- 
ciples of  construction  to  be  applied  to  the  first  Section  of  the  14th 
Amendment.  Article  IV.,  Section  2,  is  as  follows  :  "  The  citizens 
of  each  state  shall  be  entitled  to  all  the  privileges  and  immunities 
of  the  citizens  in  the  several  states."  By  the  word  "  citizen  "  here 
used  is  meant  natural  persons  alone,  and  corporations  ai*e  not  in- 
cluded within  the  protection  of  the  clause.'  A  state  is  not  there- 
fore prohibited  from  regulating  in  any  manner  or  restricting  the 
transaction  of  business  within  its  territory  by  corporations  created 
by  the  laws  of  other  states.1 

No  attempt  has  been  made  to  define  the  "  privileges  and  immuni- 
ties "  of  citizens  by  any  exhaustive  formula ;  they  have  rather  been 
described  and  partly  enumerated.  It  has,  however,  been  fully  deter- 
mined that  the  "  privileges  and  immunities  "  here  spoken  of,  and 
which  are  protected  throughout  the  whole  country,  are  those  which 
belong  to  citizens  as  such  of  a  state  by  virtue  of  their  very  citizen- 
ship, and  do  not  include  any  special  rights  which  may  have  been  con- 
ferred upon  them  or  upon  any  classes  of  them.  The  exact  views  ol 
the  court  can  be  best  learned  from  the  language  which  it  has  used 

1  Paul  v.  Virginia,  8  Wall.  168;  Ducat  v.  Chicago,  10  Wall.  410;  Liv 
erpool  Ins.  Co.  v.  Massachusetts,  10  Wall.  567. 


CITIZENSHIP   OF   THE    STATES.  525 

in  pronouncing  its  most  important  judgments.  In  one  of  these  re- 
cent cases  it  said :  "  It  was  undoubtedly  the  object  of  the  clause  in 
question  to  place  the  citizens  of  each  state  upon  the  same  footing 
with  citizens  of  other  states,  so  far  as  the  advantages  resulting  from 
citizenship  in  those  states  are  concerned.  It  relieves  them  from  the 
disabilities  of  alienage  in  other  states  \  it  inhibits  discriminating  leg- 
islation against  them  by  other  states  ;  it  gives  them  the  right  of  free 
ingress  into  other  states,  and  egress  from  them  ;  it  insures  to  them 
in  other  states  the  same  freedom  possessed  by  the  citizens  of  those 
states  in  the  acquisition  and  enjoyment  of  property  and  in  the  pur- 
suit of  happiness ;  and  it  secures  to  them  in  other  states  the  equal 
protection  of  the  laws.  It  has  been  justly  said  that  no  provision  in 
the  Constitution  has  tended  so  strongly  to  constitute  the  citizens  of 
the  United  States  one  people,  as  this.  But  the  privileges  and  im- 
munities secured  to  citizens  of  each  state  in  the  several  states,  are 
those  which  are  common  to  the  citizens  in  the  latter  states  under 
their  Constitution  and  laws  by  virtue  of  their  being  citizens.  Special 
privileges  enjoyed  by  citizens  in  their  own  states  are  not  secured  in 
other  states  by  this  provision.  It  was  not  intended  thereby  to  give 
to  the  laws  of  one  state  any  operation  in  other  states.  The  special 
privileges  which  they  confer  must  be  enjoyed  at  home."  x  Apply- 
ing these  principles,  it  was  held  that  a  grant  of  corporate  franchises 
and  powers  to  certain  persons  by  the  laws  of  one  state  was  a  special 
privilege  conferred  upon  such  persons,  not  held  by  them  in  virtue  of 
their  citizenship,  and  that  it  could  not  be  enjoyed  by  them  in  an- 
other state  against  the  consent  of  the  latter.  In  a  still  later  case  the 
court  used  the  following  language  :  "  Attempt  will  not  be  made  to 
define  the  words  '  privileges  and  immunities,'  nor  to  specify  the  rights 
which  they  were  intended  to  secure  beyond  what  may  be  necessary 
to  the  decision  of  this  case.  The  clause  plainly  includes  the  right 
of  a  citizen  of  one  state  to  pass  into  any  other  state  for  the  purpose 
of  engaging  in  lawful  commerce,  trade,  or  business  without  molesta- 
tion ;  to  acquire  personal  property ;  to  take  and  hold  real  estate ;  to 
maintain  actions  in  the  courts  of  the  state  ;  and  to  be  exempt  from 
any  higher  taxes  and  excises  than  are  imposed  by  the  state  on  its 
own  citizens."  2  In  accordance  with  this  general  statement  of  doc- 
trine, a  statute  of  Maryland  imposing  a  special  and  discriminating 
tax  in  the  form  of  a  license  fee  upon  citizens  of  other  states  trading 
M  carrying  on  business  within  its  territory,  was  held  to  be  void. 

l  Paul  v.  Virginia,  8  Wallace,  168,  180,  per  Field,  J. 

8  Ward  v.  Maryland,  12  Wallace,  418,  430,  per  Clifford,  J. 


526  FOURTEENTH  AMENDMENT, 

§  7Go.  The  Fourteenth  Amendment.  —  The  very  recent  and  re- 
markable cases  which  pass  upon  the  XlVth  Amendment,  deserve  a 
more  extended  notice.    The  first  of  them  arose  out  of  a  statute  passed 

by  the  Legislature  of  Louisiana  in  18G9,  creating  a  corporation  called 
the  Slaughter  House  Company.  This  company  was  empowered  to 
construct  and  maintain  stock-landings  and  yards,  and  a  grand  abat- 
toir or  slaughter-house  at  a  specified  place  near  New  Orleans,  and 
all  cattle  and  other  live-stock  brought  to  that  city  for  food  were 
required  to  be  landed  and  kept  at  these  yards  and  slaughtered  at 
this  abattoir,  the  company  being  authorized  to  demand  compensation, 
the  maximum  rates  of  which  were  fixed  by  the  statute.  Landing  or 
slaughtering  such  animals  elsewhere  was  prohibited  by  heavy  pen- 
alties. The  exclusive  privilege  thus  conferred  was  to  continue  for 
twenty-five  years.  Certain  persons  engaged  in  the  trade  of  butcher- 
ing, residents  of  New  Orleans  and  citizens  of  the  United  States, 
brought  appropriate  actions  in  the  state  courts  to  test  the  validity 
of  this  statute.  These  suits  were  finally  carried  to  the  Supreme 
Court  of  the  United  States.  Three  constitutional  objections  were 
urged  against  the  statute  :  first,  that  it  violated  "the  XHIth  Amend- 
ment by  creating  an  "involuntary  servitude;"  second,  that  it  vio- 
lated the  XlVth  Amendment  by  abridging  the  privileges  and  im- 
munities of  citizens  of  the  United  States ;  third,  that  it  violated  the 
same  Amendment  by  denying  to  the  plaintiffs  the  equal  protection 
of  the  laws.  The  main  reliance,  however,  was  placed  upon  the 
second  of  these  objections.  The  Supreme  Court  by  a  bare  majority 
affirmed  the  validity  of  the  statute.1  The  prevailing  opinion,  which 
was  delivered  by  Mr.  Justice  Miller,  contains  the  following  positions 
as  the  grounds  of  the  decision.  This  statute  is  an  exercise  of  the 
ordinary  police  power  of  the  state  clearly  within  the  competency 
of  the  legislature,  unless  forbidden  by  some  provision  of  the  recent 
amendments.  The  question  for  decision  is  said  to  be  this  :  "  Can 
any  exclusive  privileges  be  granted  to  any  of  its  citizens,  or  to  a 
corporation,  by  the  legislature  of  a  state?"  In  answering  this  ques- 
tion, it  was  held,  that  the  XHIth,  XlVth,  and  XVth  Amendments 
were  different  steps  in  the  accomplishment  of  one  final  object,  —  the 
abolition  of  slavery,  and  the  perfect  freedom  and  protection  of  the 
negro  race.  Although  expressed  in  general  terms,  the  primary  de- 
sign and  main  purport  of  the  XlVth  Amendment  was  to  confirm 
the  status  of  the  negroes  as  citizens,  and  to  prevent  the  enactment 
>f  state  laws  which  would  discriminate  against  them.     Taking  up 

1  Slaughter  House  Cases,  16  Wallace,  36. 


CITIZENSHIP   OF   THE   UNITED   STATES.  527 

the  three  above  named  objections  in  turn,  the  court  decides  in  ref- 
erence to  the  first,  —  and  in  this  particular  all  the  judges  were  agreed, 
—  that  the  Xlllth  Amendment  had  no  application  whatever  to  the 
case  ;  that  the  "  involuntary  servitude  "  prohibited  by  it  referred 
exclusively  to  some  species  of  personal  slavery,  not  indeed  African 
slavery  or  absolute  slavery  necessarily,  but  to  some  kind  of  con- 
strained service  like  peonage.  Of  the  correctness  of  this  conclusion 
there  can  be  no  doubt.  Passing  to  the  second  objection  ;  the  im- 
port and  effect  of  the  first  section  of  the  XlVth  Amendment  are 
discussed  at  great  length.  The  Constitution  is  made  by  it  for  the 
first  time  to  define  citizenship  of  the  United  States,  and  it  is  de- 
clared that  citizenship  of  the  United  States  may  exist  separate  and 
independent  from  citizenship  of  the  several  states.  In  fact,  citizen- 
ship of  the  United  States  is  made  to  be  the  primary  status,  and  that 
of  the  States  flows  from  it  as  a  consequence.  After  thus  defining 
the  status  of  citizenship,  the  succeeding  clause  is  as  follows  :  "  No 
state  shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States."  This  pro- 
hibition is  confined  to  those  privileges  and  immunities  which  belong 
to  citizens  of  the  United  States  as  such  :  it  does  not  embrace  those 
belonging  to  citizens  of  the  several  states.  As  there  are  the  two 
kinds  of  citizenship,  so  there  are  privileges  and  immunities  apper- 
taining to  each.  This  provision  in  express  terms  is  limited  to  one 
class,  and  leaves  the  other  where  it  was  before,  under  the  protection 
of  the  state  laws  and  the  state  courts.  Nor  does  the  amendment 
purport  to  define,  much  less  to  create  any  "privileges  or  immuni- 
ties "  which  are  peculiar  to  national  citizenship.  The  court  forbears 
to  enumerate  these  privileges  and  immunities,  and  the  opinion  upon 
this  particular  subject  is  very  unsatisfactory.  It  plainly  implies, 
however,  that  the  ordinary  fundamental  rights  belonging  to  all 
persons  to  hold  and  acquire  property,  to  engage  in  trade  and  all 
lawful  kinds  of  business,  to  labor  in  different  callings,  and  the  like, 
are  not  among  the  privileges  and  immunities  which  belong  to 
United  States  citizenship  as  such,  and  are  not  protected  by  this  pro- 
vision against  state  legislation.  The  court  finally  examined  the 
third  ground  of  objection.  The  language  of  the  amendment  is : 
u  Nor  shall  any  state  deprive  any  person  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law,  nor  deny  to  any  person  within  its 
mrisdiction  the  equal  protection  of  the  laws."  Under  no  judicial 
construction  ever  given  to  the  familiar  terms  of  this  clause,  can  it 
be  claimed  with  any  propriety  that  the  statute  in  question  deprives 


528  FOURTEENTH   AMENDMENT. 

the  complainants  of  their  liberty  or  of  their  property.     The  last 

provision  of  all, — nor  shall  any  state  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws,  —  was.  as  a  matter  of 
history,  aimed  exclusively  at  state  statutes  which  were  one-sided 
and  oppressive  in  their  effect  upon  the  emancipated  blacks.  Mr 
Justice  Miller  says,  in  reference  to  it:  "We  doubt  very  much 
whether  any  action  of  a  state  not  directed  by  way  of  discrimination 
against  the  negroes  as  a  class,  or  on  account  of  their  race,  will  ever 
be  held  to  come  within  the  purview  of  this  provision.  It  is  so 
clearly  a  provision  for  that  race  and  that  emergency,  that  a  strong 
case  would  be  necessary  for  its  application  to  any  other." 

Four  members  of  the  court,  Field,  Swayne,  and  Bradley,  JJ.,  and 
Chase,  C.  J.  dissented.  In  their  opinion  the  XlVth  Amendment, 
although  adopted  on  the  occasion  of  the  great  change  in  civil  and 
political  status  of  the  blacks,  was  not  confined  in  its  operation  to 
them,  nor  did  it  in  fact  refer  to  them  or  allude  to  them  in  its  first 
section  as  a  distinct  class.  Agreeing  with  the  majority  that  a  dis- 
tinction is  made  between  citizens  of  the  United  States  and  those  of 
the  states,  and  that  the  provision  under  consideration  was  intended 
only  to  protect  the  privileges  and  immunities  of  the  former  from 
invasion  by  the  States,  they  hold  that  these  privileges  and  immunities 
are  the  same  fundamental,  absolute  rights  which  appertain  to  per- 
sons as  citizens  of  the  several  states.  The  second  section  of  the 
lourth  article,  using  these  very  terms,  declares  that  "  the  citizens  of 
each  state  shall  be  entitled  to  all  the  privileges  and  immunities  of 
citizens  in  the  several  states."  The  court  had  frequently  decided 
that  the  rights  here  referred  to  are  those  which  belong  to  citizens 
of  the  States  as  such,  and  include  the  rights  of  free  ingress  and 
egress,  of  acquiring,  holding,  and  transmitting  property,  of  carrying 
on  all  lawful  trades  and  occupations,  and  of  equality  before  the  laws. 
The  minority  argued  that  the  same  rights,  which  by  this  original 
article  were  secured  to  state  citizens  against  discriminating  state 
legislation,  were  by  the  XlVth  Amendment  secured  to  citizens  of 
the  nation  against  the  same  legislation.  In  short,  the  object  of  this 
clause  of  the  amendment  was  to  afford  the  same  protection  to  all 
persons  as  citizens  of  the  United  States  against  local  oppressive 
laws,  which  the  Constitution  originally  afforded  to  all  persons  in 
their  character  as  citizens  of  the  several  states.  The  statute,  more- 
over, violated  the  XlVth  Amendment  in  another  particular,  ki  that 
it  denied  to  the  complainants  the  equal  protection  of  the  laws  of 
Louisiana.     The  dissenting  judges  asserted  emphatically  that  the 


CITIZENSHIP   rY   THE   UNITED   STATES.  529 

clause  inhibiting  such  denial  was  not  to  be  confined  in  its  operation 
to  legislation  aimed  at  the  negroes  as  a  race  ;  its  terms  were  most 
general  and  comprehensive,  "  nor  shall  any  state  deny  to  any  person." 
In  fine,  the  XlVth  Amendment  was  enacted  to  supply  a  great  want 
which  had  existed  from  the  commencement  of  the  government. 
While  the  States  were  from  the  outset  forbidden  to  pass  ex  post  facto 
laws,  or  bills  of  attainder,  or  laws  impairing  the  obligation  of  con- 
tracts, they  might  in  any  other  manner  invade  the  rights  of  citizens. 
and  the  national  courts  could  grant  no  relief.  This  beneficent 
amendment  throws  the  protection  of  the  nation,  of  its  Congress,  and 
its  courts,  around  the  lives,  liberty,  and  property  of  all  its  citizens, 
and  enables  the  supreme  tribunal  to  annul  all  oppressive  laws  which 
the  partisanship  of  local  courts  might  perhaps  sustain.  To  limit 
the  meaning  of  the  amendment,  to  confine  its  effect  to  one  portion 
of  the  inhabitants,  and  that  a  comparatively  small  part,  was  to  de- 
feat its  most  important  design,  and  to  destroy  its  highest  usefulness. 
§  766.  The  same  general  subject  was  presented  for  decision  in 
the  case  of  Braclwell  v.  the  State,1  which  came  up  on  error  from  the 
courts  of  Illinois.  Mrs.  Braclwell,  a  married  woman,  applied  to  the 
Supreme  Court  of  that  state  for  admission  to  the  Bar.  Her  demand 
was  refused  on  the  ground  that  the  law  of  Illinois  only  permitted 
males  to  practise  as  counsellors.  She  thereupon  brought  the  matter 
before  the  Supreme  Court  of  the  United  States,  and  claimed  that 
the  state  law  was  invalid,  because,  first,  she  was  as  she  alleged  a 
citizen  of  Vermont  although  residing  in  Illinois,  and  as  such  was 
protected  by  Art.  IV.  Sec.  II.;  second,  her  privileges  and  immunities 
as  a  citizen  of  the  United  States  were  abridged.  The  same  five 
judges  who  formed  the  majority  in  the  former  case  again  united 
in  rendering  the  judgment.  The  first  ground  taken  by  Mrs.  Brad- 
well  was  disposed  of  as  a  question  of  fact.  Although  she  alleged 
that  she  was  a  citizen  of  Vermont,  yet  her  own  affidavit  showed  that 
this  allegation  was  untrue,  for  it  stated  in  an  unqualified  manner 
that  she  resided  and  had  resided  for  many  years  in  Illinois,  and  this, 
by  force  of  the  first  section  of  the  XlVth  Amendment,  made  her  a 
citizen  of  the  latter  state.  If,  however,  she  had  been  in  truth  a 
citizen  of  Vermont,  this  fact  would  not  have  aided  her  case,  for  the 
right  to  practise  law  is  not  one  of  the  privileges  belonging  to  citizens 
of  a  state  as  such.  In  answer  to  the  other  ground  of  objection 
taken  by  her,  the  five  judges  reaffirmed  the  doctrine  of  the  Slaughter 
House  Case.     Three  members  of  the  court,   Field,    Swayue,  and 

1  16  Wallace,  130. 
34 


BSD  FOURTEENTH   AMENDMENT. 

Bradley,  JJ.  concurred  in  this  decision  but  not  in  all  the  reasoning 
which  led  to  it.  Repeating  the  interpretation  which  they  bad  advo- 
cated in  the  former  cause,  namely,  that  the  amendment  was  intended 
to  protect  all  the  fundamental  civil  rights  which  flow  from  the  status 
of  national  citizenship,  they  simply  held  that  the  right  of  any  person 
to  be  admitted  to  the  Bar  is  not  embraced  within  the  number  of  these 
privileges  and  immunities  ;  it  is  a  special  right  —  or  rather  capacity 
—  conferred  or  withheld  at  the  optiou  of  the  state  legislature,  and 
has  no  necessary  connection  whatever  with  citizenship. 

The  effect  of  the  first  section  of  the  XlVth  Amendment  upon  an 
entirely  different  class  of  state  statutes  was  discussed,  and  to  some 
extent  determined  in  a  very  recent  adjudication.  A  statute  regulat- 
ing the  sale  of  intoxicating  liquors,  providing  for  the  licensing  of 
lawful  vendors,  and  prohibiting  the  sale  by  persons  not  licensed,  —  in 
short,  one  of  the  ordinary  forms  of  legislation  in  reference  to  this 
particular  subject  matter,  —  was  attacked  on  the  ground  that  it  was 
obnoxious  to  the  provisions  of  the  amendment.  This  statute  had 
been  in  existence  for  several  years  prior  to  the  adoption  of  the 
amendment,  and  the  argument  was  that  the  addition  thus  made  to 
the  organic  law  swept  it  out  of  existence.  Without  inquiring  to 
any  extent  into  the  full  meaning  of  the  first  section,  the  Supreme 
Court  of  the  United  States  simply  declared  that  the  right  to  sell  in- 
toxicating liquors  is  not  one  of  the  privileges  and  immunities  belong- 
ing to  citizenship  of  the  United  States  which  the  States  are  forbid- 
den to  abridge.  This  particular  trade  is  a  matter  which  has  been 
always  under  the  control  of  the  States  by  virtue  of  their  powers  of 
police  regulation,  and  such  universally  admitted  police  power  has 
not  been  in  any  manner  affected.  The  court  added,  however,  that 
if  such  a  law,  purporting  to  be  an  exercise  of  police  regulation,  should 
absolutely  forbid  the  sale  of  liquors,  or  of  any  other  lawful  property, 
which  an  owner  had  on  hand  at  the  time  of  its  passage,  it  would 
violate  that  clause  of  the  first  section  which  prohibits  a  state  from 
depriving  any  person  of  life,  liberty,  or  property  without  due  pro- 
cess of  law.1  This  statement  was  of  course  a  dictum,  but  its  correct- 
ness is  sustained  by  numerous  judgments  of  other  courts. 

§  767.  The  decision  made  in  the  Slaughter  House  Case  can 
hardly  be  regarded  as  final  in  giving  a  construction  to  the  XlVth 
Amendment.  When  the  court  is  so  evenly  divided,  and  when  the 
dissenting  minority  support  their  position  by  such  powerful  reason- 
ing, and  especially  when  the  course  of  argument  pursued  by  tie  ma» 
1  Bartenieyer  v.  Iowa,  18  Wallace,  129. 


THE   ELECTORAL  FRANCHISE.  531 

jorhy  is  not  absolutely  essential  to  the  correctness  of  the  actual  con- 
clusion reached  by  them,  the  case  cannot  be  considered  as  a  very 
Btrong  and  weighty  precedent.  The  validity  of  the  Louisiana  statute 
might  perhaps  have  been  sustained  on  the  ground  that  it  was  a  mere 
police  regulation,  a  measure  tending  to  preserve  the  public  health  ; 
in  other  words,  the  decision  might  have  been  placed  upon  exactly  the 
same  basis  as  that  adopted  in  the  subsequent  case  involving  the  Iowa 
excise  law.  I  am  of  opinion  that  the  fundamental  position  taken  by 
the  minority  in  the  Slaughter  House  Case,  the  broad,  general  princi- 
ple of  interpretation  adopted  by  them  is  correct,  and  that  it  will  in 
time  be  universally  accepted.  The  "  immunities  and  privileges  of 
citizens  of  the  United  States "  embrace  those  civil  capacities  and 
rights  which  belong  to  all  persons  as  citizens,  and  these  rights  are 
the  same  as  those  which  belong  to  citizens  of  the  several  states. 
National  citizenship  always  existed,  and  the  essence  of  the  immunities 
resulting  from  it  is  the  protection  due  from  the  nation  to  its  citizens 
in  all  places  and  at  all  times.  This  protection  could  always  be  ex- 
ercised by  the  national  government  over  its  citizens  in  other  coun- 
tries, or  on  the  high  seas  ;  but  until  the  XlVth  Amendment  was 
passed,  there  was  not  the  same  facility,  there  were  not  the  same 
means  and  instruments,  for  exercising  that  protection  over  its  citizens 
when  at  home  and  within  the  territory  of  a  state.  This  want  — 
this  casus  omissus  —  is  now  supplied,  and  the  nation,  through  its 
Congress  and  its  courts,  can  afford  to  its  citizens  at  home  complete 
protection  against  the  discriminating  legislation  of  the  States  which 
may  attempt  to  invade  their  privileges  and  immunities. 

This  grand  principle  of  interpretation  may,  I  think,  be  regarded 
as  settled,  and  the  questions  which  remain  open  all  resolve  them- 
selves into  this  one :  What  particular  rights  and  capacities  are 
embraced  within  the  privileges  and  immunities  which  belong  to 
United  States  citizens  ?  All  the  courts  and  all  the  judges  are 
agreed  that  the  privileges  and  immunities  spoken  of  must  be  such 
as  belong  to  all  citizens  as  such,  as  flow  from,  or  rather  are  involved 
in,  the  notion  of  citizenship  itself.  The  other  parts  of  the  Constitu- 
tion, which  arrange  the  governmental  machinery,  and  leave  the  power 
of  regulating  the  right  of  suffrage  with  the  States,  show  that  these 
privileges  and  immunities  belonging  to  citizenship  of  the  nation 
must  all  be  civil  in  their  nature  and  not  political.  The  reasoning 
of  both  the  majority  and  of  the  minority  in  the  Slaughter  House 
Case  inevitably  leads  to  this  conclusion.  It  follows  that  the  right  of 
voting  —  the  electoral  franchise  —  is  not  protected  nor  in  any  manner 


532  FOURTEENTH   AMENDMENT. 

affected  by  the  first  section  of  the  XlVth  Amendment.  That  mat 
ter  was  originally  placed  within  the  exclusive  control  of  the  States 
and  as  they  might  confer  the  electoral  franchise  at  will,  it  plainly 
was  not  an  attribute  of  national  citizenship.  This  political  arrange- 
ment has  not  been  changed  except  in  one  particular.  The  States 
alone  may  still  regulate  the  right  of  suffrage  under  the  single  lim- 
itation that  they  may  not  deny  it  to  any  person  on  account  of  his 
race,  color,  or  previous  condition  of  servitude.1  To  sum  up  the 
foregoing  discussion:  A1]  the  rights  which  inhere  in  the  national 
citizenship  as  such,  are  fully  secured  against  hostile  state  legisla- 
tion. The  negative  clauses  of  the  XlVth  Amendment,  executing 
themselves  in  the  same  manner  as  the  clauses  forbidding  ex  post  facto 
laws  and  the  like,  invalidate  every  state  statute  which  is  opposed  to 
their  inhibitions.  The  rights  thus  protected  are  all  civil  in  their  nat- 
ure and  not  political,  and  embrace  the  fundamental  capacities  and 
rights  to  pass  through  the  States  at  will,  to  enter  and  dwell  in  any 
one  at  will,  to  acquire,  hold,  and  transmit  personal  and  real  prop- 
erty, to  enter  into  contracts,  to  engage  in  and  pursue  all  lawful 
trades  and  avocations,  to  obtain  redress  in  the  courts,  and  to  be 
equal  before  the  laws.  Such  civil  rights  as  these  make  up  the  priv- 
ileges and  immunities  of  United  States  citizens  ;  but  it  must  be  un- 
derstood that  they  are  all  to  be  enjoyed  subject  to  the  exercise  of 
the  three  great  governmental  powers  which  are  left  with  the  States, 
—  the  power  of  taxation,  the  power  of  eminent  domain,  and  the 
power  of  police. 

No  judicial  construction  has  yet  been  given  to  the  XVth  Amend- 
ment by  the  United  States  Supreme  Court ;  and  although  Congress 
has  claimed  and  exercised  large  powers  under  it,  and  the  validity  of 
its  acts  has  been  strongly  questioned,  I  prefer  not  to  enter  into  this 
region  of  contest  at  present. 

The  Power  of  Taxing. 

§  768.  Many  cases  have  arisen  within  the  past  few  years  involv- 
ing the  taxing  power.  Some  of  these  are  of  the  first  importance, 
depending  upon  the  relations  of  the  federal  and  the  state  govern- 
ments in  their  respective  exercise  of  this  high  attribute.     The  prin- 

1  These  positions,  in  reference  to  the  effect  of  the  XlVth  and  XVth 
Amendments  upon  the  right  of  suffrage,  were  fully  sustained  by  tne 
Supreme  Court  in  a  decision  lately  made,  and  directly  involving  th6 
questions  discussed.  The  subject  of  woman  suffrage  was  passed  upon: 
and  the  amendments  were  held  to  have  conferred  no  rights  upon  women 
in  this  respect. 


THE   KINDS   OF   TAXES.  533 

ciple  announced  in  certain  of  these  adjudications  requires  some 
modification  of  the  speculative  doctrines  maintained  by  me  in  the 
text.  Following  out  the  theory  that  the  United  States  is,  within 
the  sphere  of  its  attributes  and  functions,  supreme,  I  reached  the 
conclusion  that  the  power  of  taxing  held  by  the  nation  could  be 
exercised  upon  all  species  of  property,  to  the  exclusion,  if  need  be, 
of  the  states'  subordinate  power.  I  did  not  claim  that  the  national 
power  could  be  used  upon  or  against  any  of  their  governmental 
machinery,  means,  or  instruments,  nor  upon  property  belonging  to 
the  States  ;  I  carefully  limited  its  exercise  to  private  property.  The 
Supreme  Court,  however,  has  practically  created  a  further  limita- 
tion. It  denies  that  the  United  States  government  is  supreme  in 
respect  to  this  particular  function.  It  declares  that  the  Congress  on 
the  one  hand  and  the  several  states  on  the  other,  are  coequal  within 
the  domain  of  legislation  belonging  to  each.  Neither  can  trespass 
upon  the  province  of  the  other.  The  same  restraints  which,  from 
the  necessity  of  the  case,  are  applied  to  the  exercise  of  the  taxing 
power  by  the  States  in  respect  to  the  agencies  and  instrumentalities 
of  the  national  government,  are  also  to  be  applied  to  the  exercise  of 
the  taxing  power  by  the  nation  in  respect  to  the  agencies  and  instru- 
mentalities of  the  state  governments.  In  short,  these  implied  lim- 
itations are  entirely  reciprocal. 

The  various  practical  rules  and  doctrines  which  have  been  an- 
nounced by  the  Supreme  Court  from  time  to  time  will  be  now 
briefly  stated,  following  the  general  order  which  is  observed  in  the 
text. 

§  769.  Kinds  of  Taxes.  —  The  income  tax  imposed  upon  insur- 
ance companies  is  a  duty  or  excise,  and  not  a  direct  tax,  and  need 
not  therefore  be  apportioned  among  the  States.1  Although  this 
decision  applies  only  to  an  income  tax  upon  corporations,  the  reason- 
ing necessarily  includes  all  instances  of  this  particular  species  of 
impost,  —  that  laid  upon  the  incomes  of  individuals  among  others. 
In  other  words,  it  necessarily  establishes  the  validity  of  all  income 
taxes  which  are  not  apportioned.  Congress  laid  a  tax  upon  all  banks 
of  10  per  cent,  on  the  amount  of  the  notes  of  state  banks  paid  out  by 
them.  This  was  also  held  to  be  a  duty  or  excise,  and  not  a  direct 
tax.2  In  both  of  these  cases  the  early  case  of  Hylton  v.  United 
States,  and  its  definition  of  direct  taxes,  were  expressly  approved. 

§  770,  Extent,  of  the  Taxing  Power  held  by  the  United  States.  — 

1  Pacific  Ins.  Co.  v.  Soule,  7  Wall.  433. 

2  Veazie  Bank  v.  Fenno,  8  Wall.  533. 


534  TAXATION   BY   THE   UNITED   STATES. 

V  tax  thus  imposed  by  Congress  upon  the  circulation  of  state  bankr 
i>  valid,  although  its  effect  might  be,  and  was  intended  to  be,  the 
driving  the  notes  of  such  banks  entirely  out  of  use,  and  thus  the 
possible  destruction  of  those  banks  themselves.1  In  his  opinion, 
which  was  adopted  by  the  court.  Chief  Justice  Chase  said:'2  "It 
may  be  admitted  that  the  reserved  rights  of  the  States,  such  as  the 
right  to  pass  laws,  to  give  effect  to  laws  through  state  action,  to 
administer  justice  through  the  courts,  and  to  employ  all  necessary 
agencies  for  legitimate  purposes  of  state  government,  are  not  proper 
subjects  of  the  taxing  power  of  Congress."  Franchises  of  a  cor- 
poration, however,  are  not  ^  ithin  these  exceptions ;  they  are  prop- 
erty and  not  governmental  machinery  or  agencies.  This  tax  was 
not  even  imposed  upon  corporate  franchises.  Congress  may  provide 
a  means  of  general  circulation,  —  a  national  currency,  —  and  may 
resort  to  all  measures  which  will  promote  its  efficacy,  and  to  that 
end  may  destroy  the  rival  currency  of  the  state  banks.  From  this 
judgment  Nelson  and  Davis,  JJ.,  dissented.  They  were  of  opinion 
that  this  tax  was  laid  upon  the  franchises  of  the  banks,  and  denied 
that  Congress  could  thus  invade  and  curtail  the  legislative  function 
of  the  States  ;  for  if  this  particular  statute  was  valid,  there  was  no 
limit  upon  the  power  of  Congress,  and  it  might  by  taxation  destroy 
all  state  corporations  whatsoever. 

There  are  implied  limitations  upon  the  national  power  of  tax- 
ation which  prevent  it  from  infringing  upon  the  governmental  func- 
tions and  attributes  of  the  States.  The  United  States  is  not  supreme 
in  this  respect,  but  its  government  and  those  of  the  several  states 
occupy  a  position  of  equality,  except  so  far  as  the  latter  may  be 
expressly  restricted  by  certain  provisions  of  the  Constitution.  The 
doctrine  that  states  may  not  lay  taxes  upon  the  agencies  and  instru- 
mentalities of  the  nation,  applies  in  the  same  manner,  to  the  same 
extent,  and  for  the  same  reason,  to  the  exercise  of  the  taxing  power 
by  the  United  States.  Congress  cannot  lay  a  tax  upon  any  of  the 
agencies  or  instrumentalities  which  are  necessary  or  appropriate  for 
the  legitimate  governmental  acts  and  operations  of  the  States.  Ap- 
plying this  principle,  it  is  now  established  that  Congress  cannot 
impose  an  income  tax  upon  the  salary  of  a  state  judicial  officer,  even 
though  the  salary  is  not  subjected  to  the  impost  by  name,  but  the 
Btatute  is  general  in  its  terms,  applying  to  all  incomes  greater  than 
a  certain  specific  amount.3     In  accordance  with  the  same  principle. 

1  Veazie  Bank  v.  Fenno,  8  Wall.  533,  2  Ibid.  p.  547. 

8  Collector  v.  Day,  11  Wall.  113. 


TAXATION  BY  THE   STATES.  535 

the  United  States  cannot  tax  a  municipal  corporation  in  respect  of 
its  revenues,  for  such  corporation  is  a  part  of  the  governmental 
machinery  of  a  state.1  Although  the  question  is  not  raised  noi 
even  alluded  to  in  either  of  these  two  adjudications,  their  ratio 
decidendi  clearly  embraces  within  its  effect  the  case  of  stamps  upon 
the  process  and  other  papers  used  in  judicial  proceedings  before  the 
state  courts.  Such  modes  of  excise,  as  a  means  of  taxing  by  the 
United  States,  are  plainly  condemned.  It  would  seem  also  that  the 
provision,  formerly  contained  in  the  Internal  Revenue  Act,  prohib- 
iting conveyances  and  agreements  in  writing  from  being  offered  in 
evidence  in  trials  before  the  state  courts  unless  duly  stamped,  was 
equally  invalid.  A  most  important  principle  has  been  announced  in 
a  very  recent  and  well  considered  case.  No  unlimited  power,  it  is 
said,  exists  in  any  department  of  the  government,  state  or  national. 
Even  in  the  absence  of  express  restrictions,  there  are  certain  lim- 
itations arising  from  the  essential  nature  of  all  free  governments. 
The  power  of  taxation,  whether  wielded  by  Congress  or  by  a  state 
legislature,  is  subject  to  these  restraints  which  inhere  in  the  function 
itself,  and  control  its  use  and  operation.  Every  tax,  to  be  valid, 
must  be  imposed  for  some  public  object,  —  an  object  that  is  within 
the  purposes  for  which  governments  are  established.  The  taxing 
power  cannot  be  exercised  in  aid  of  enterprises  strictly  private,  for 
the  benefit  of  individuals,  although  in  a  remote  and  collateral  man- 
ner the  local  public  may  be  benefited.2  This  principle,  if  settled, 
will  be  fruitful  of  most  important  results. 

§  771.  The  Poiver  of  Taxing  held  by  the  States.  Implied  Limita- 
tions. —  In  pursuance  of  the  now  familiar  doctrine  that  the  States 
cannot  interfere  with  the  agencies  of  the  national  government,  no 
tax  can  be  laid  by  them  on  the  "  certificates  of  indebtedness  "  issued 
by  the  Treasury,3  nor  upon  the  "  treasury  notes  "  which  are  used  as 
currency  —  the  "  greenbacks."  4  When,  however,  the  franchises  of 
a  corporation  are  taxed,  and  not  its  property,  the  restriction  upon 
the  state  power  just  referred  to  has  no  application  ;  the  tax  is  valid 
although  the  capital  stock  may  be  invested  in,  or  the  corporate  prop- 
erty largely  consist  of,  United  States  securities.5     A  most  important 

1  U.  S.  v.  Railroad  Co.  17  Wall.  322. 

2  Loan  Asso.  v.  Topeka,  20  Wall.  655,  663,  per  Miller,  J. 
The  Banks  v.  The  Mayor,  7  Wall.  16. 

*  Banks  v.  Supervisors,  7  Wall.  26. 

6  Soc.  for  Savings  v.  Coite,  6  Wall.  594 ;  Provident  Inst.  v.  Mass.  Ibid. 
Ill  ;  Hamilton  Co.  v.  Mass.  Ibid.  632. 


536  TAXATION  BY  THE   STATES. 

limitation  upon  the  general  doctrine  itself  has  been  established  bj 
the  Supreme  Court.  As  it  is  an  implication  from  the  powers  and 
(unctions  of  the  national  government,  whenever  the  action  of  the 
state  does  not  and  cannot  impair  the  usefulness  and  capability  of 
the  instrumentalities  created  by  that  government,  there  is  no  inter- 
ference, and  no  reason  exists  for  the  implied  exemption  ;  the  action 
of  the  state  is  therefore  lawful  and  valid.  In  the  language  used  by 
the  court  itself,  "Exemption  of  agencies  of  the  federal  government 
from  state  taxation  depends  not  on  the  nature  of  the  agent,  nor  upon 
the  fact  that  it  is  an-  agent,  but  upon  the  effect  of  the  tax  ;  that  is, 
upon  the  question  whether  the  tax  does  deprive  the  agency  of  its 
power  to  serve  the  government  as  it  was  intended  to  serve  it,  or 
does  hinder  the  efficient  exercise  of  that  power."  J  In  applying  this 
limitation  the  court  sustained  the  validity  of  the  following  taxes 
imposed  by  various  states :  Upon  the  shareholders  of  national 
banks  in  respect  of  their  shares,  and  made  payable  primarily  by  the 
banks  themselves  ; 2  Upon  a  railroad  company  chartered  by  a  state, 
but  to  which  Congress  had  extended  great  aid,  and  over  which  it 
exercised  a  certain  control ;  the  railroad  was  said  to  be  only  an 
agent  which  Congress  employs,  or  provides  for  employing,  to  do 
certain  particular  services  ; 3  Upon  the  real  and  personal  property 
of  the  Union  Pacific  Railroad,  a  corporation  chartered  by  Con- 
gress, and  over  which  the  national  government  exercises  some  con- 
trol and  direction,  although  the  capital  stock  is  all  held  by  private 
persons,  and  which  it  retains  the  right  to  use  for  the  transport  of 
troops  and  for  other  purposes  at  a  compensation  fixed  in  the  charter. 
The  court  in  distinguishing  between  the  taxes  which  may,  and  those 
which  may  not  be  imposed  by  a  state,  say  that  a  tax  on  the  property 
of  this  corporation,  as  was  the  one  under  discussion,  did  not  inter- 
fere with  the  efficiency  of  this  governmental  agency,  while  one  upon 
its  operation  would  thus  interfere  and  would  therefore  be  invalid.4 

The  principle  of  implied  exemption  from  state  taxation,  which 
had  been  heretofore  applied  exclusively  to  some  species  of  financial 
agency,  was  extended  to  a  very  different  kind  of  subject  matter  in 
Crandall  v.  Nevada.5    A  tax  imposed  by  Nevada  upon  all  passengers 

1  Railroad  Co.  v.  Peniston,  18  Wall.  5  ;  National  Bank  v.  Common 
wealth,  9  Wall.  353. 

2  National  Bank  v.  Commonwealth,  9  Wall.  353. 

3  Thompson  v.  Pacific  R.  R.  9  Wall.  579. 

4  Railroad  Co.  v.  Peniston,  18  Wall.  5. 
«  6  Wall.  35. 


TAXATION  BY   THE    STATES.  537 

passing  through  and  beyond  the  boundaries  of  the  state,  was  de- 
clared to  be  invalid.  The  reasons  given  by  a  majority  of  tbe  court 
for  their  decision  were  the  following:  The  United  States  has  a  right 
to  call  for  the  services  of  its  citizens  at  all  points  of  the  national 
territory,  and  to  transport  its  own  troops.  Citizens  have  the  right 
to  go  to  the  seat  of  government,  and  to  all  other  places  where  public 
offices  are  situated,  and  to  ports  of  entry,  as  the  necessities  of  their 
business  may  require.  For  these  purposes  citizens  must  travel. 
The  tax  in  question  tends  to  impair  and  might  be  made  to  destroy 
this  common  right.  This  judgment  certainly  pushes  the  doctrine 
upon  which  it  is  rested  to  an  extreme  which  is  almost  absurd.  It 
demands  a  severe  strain  upon  language,  if  not  upon  common  sense, 
to  call  the  travelling  of  citizens  under  any  circumstances  an  instru- 
mentality for  carrying  on  the  national  government.  The  same  rea- 
soning might  be  applied  with  equal  force  to  numerous  other  objects, 
—  for  example  to  the  taxing  of  railroads  and  all  other  means  of 
intercommunication,  —  and  might  thus  virtually  destroy  the  entire 
taxing  function  of  the  States.  It  is  difficult  to  reconcile  this  case 
with  the  principle  announced  by  the  court  in  Railroad  Co.  v.  Penis- 
ton,  Thompson  v.  Pacific  Railroad,  and  National  Bank  v.  Common- 
wealth, which  is  stated  in  the  last  preceding  paragraph.  Chief  Jus- 
tice Chase  and  Mr.  Justice  Clifford  dissented  from  the  reasoning  of 
the  court,  and  held  the  statute  void  as  being  a  regulation  of  inter- 
state commerce  ;  and  their  opinion  is  strongly  supported  by  recent 
decisions  which  will  be  referred  to  in  a  subsequent  paragraph. 

Although  the  United  States  may  by  its  statutes  provide  for  licens- 
ing certain  trades  and  pursuits,  such  licenses  when  granted  do  not 
Vave  the  effect  to  override  or  nullify  the  state  legislation  upon  the 
same  subject ;  the  persons  obtaining  the  licenses  from  the  national 
government  are  still  under  the  control  of  the  police  laws  of  the 
States.  Where,  for  example,  United  States  licenses  are  granted  to 
persons  engaged  in  selling  spirituous  liquors,  the  state  excise  or 
prohibitory  laws  continue  to  be  fully  operative  as  against  such  par- 
ties.1 

§  772.  Express  Limitations.  —  The  power  of  a  state  to  tax  is 
confined  to  persons,  property,  and  business  within  its  jurisdiction. 
Bonds,  therefore,  issued  by  a  railroad  corporation  and  owned  by  a 
foreigner  residing  abroad,  cannot,  in  accordance  with  this  principle, 
be  taxed,  even  though  they  are  secured  by  a  mortgage  on  the  com- 

1  License  Tax  Cases,  5  Wall.  462  ;  Pervear  v.  Commonwealth,  i 
Wall.  475. 


538  TAXATION  BY   THE   STATES. 

pany's  land  and  other  property  situated  within  the  state.1  Taxes 
may  be  laid  on  vessels  as  property  based  upon  a  valuation  thereof; 
but  taxes  laid  on  the  tonnage,  that  is  at  so  much  per  ton,  are 
pressly  prohibited ;  and  it  makes  no  difference  that  the  vessels  are 
both  wholly  owned  by  citizens  of  the  state,  and  ply  their  trade  ex- 
clusively within  its  territorial  waters.2  Nor  can  a  state,  in  order 
to  defray  the  expenses  of  its  quarantine  system,  impose  a  tonnage 
tax  on  vessels  owned  in  foreign  ports  and  entering  its  own  [torts 
while  engaged  in  commerce.3 

The  clause,  "  No  state  shall  levy  any  imposts  or  duties  on  imports 
or  exports,"  does  not  apply  to  articles  imported  from  one  state  to 
another,  but  only  to  those  imported  from  or  exported  to  foreign 
countries.  Hence  a  tax  upon  all  sales  made  by  any  person,  citizen 
or  not,  of  goods,  the  products  of  the  state,  or  brought  from  other 
states,  there  being  no  discrimination,  is  valid.4  A  special  tax,  how- 
ever, in  the  form  of  a  license  required  from  non-resident  traders,  and 
discriminating  against  them  in  favor  of  residents,  is  in  direct  viola- 
tion of  the  Second  Section  of  Article  IV.,  and  clearly  void.5 

Several  cases  have  been  decided  which  involve  both  the  validity 
of  some  species  of  taxation  and  the  powers  of  states  over  commerce. 
Those  which  principally  turn  upon  the  latter  power  and  discuss  it  at 
larce  will  be  found  quoted  under  the  subsequent  head  which  relates 
to  the  regulation  of  commerce  ;  the  others  may  be  mentioned  in  the 
present  connection.  A  city  ordinance,  general  in  its  terms  and  affect- 
ing alike  all  corporations  engaged  in  the  business  of  transportation, 
which  imposes  a  license  upon  a  railroad  or  express  company  char- 
tered in  another  state  and  carrying  on  its  business  within  the  city, 
the  business  including  the  transportation  of  goods  beyond  the  state, 
is  not  void  as  being  in  conflict  with  the  provision  of  the  Constitution 
authorizing  Congress  to  regulate  commerce  among  the  States.  As 
there  is  no  discrimination,  and  the  ordinance  applies  to  all  corpora- 
tions, domestic  and  foreign,  it  does  not  fall  within  the  doctrine  of 
Ward  v.  Maryland,  but  rather  comes  within  that  of  Woodruff  v. 
Parham.     Although  this  decision  was  made  in  respect  to  a  city  or- 

1  Railroad  Co.  v.  Jackson,  7  Wall.  262  ;  Railroad  Co.  v.  Perm.  15 
Wall.  300. 

2  State  Tonnage  Tax  Cases,  12  Wall.  204. 

8  Peele   v.    Morgan,  19  Wall.  581.      See    Cannon  v.  New    Orleana 
80  Wall.  577. 
*  Woodruff  v.  Parham,  8  Wall.  123  ;  Hinson  v.  Lott,  8  Wall.  148. 
6  Ward  v.  Maryland,  12  Wall.  418. 


COMMERCE   AMONG   THE   STATES.  53S 

dinance,  its  principle  clearly  includes  the  statutes  of  a  legislature. 
A  tax  imposed  upon  railroads  and  based  upon  the  gross  receipts 
from  their  business,  including  that  received  from  interstate  trans- 
portation as  well  as  that  l'eceived  from  wholly  internal  traffic,  is  un- 
objectionable ;  it  is  not  a  tax  upon  imports,  nor  upon  exports,  nor 
upon  interstate  transportation,  nor  is  it  a  regulation  of  commerce.2 
It  is  laid  down  by  the  Supreme  Court  as  a  geueral  principle,  that  a 
tax  levied  by  a  state  on  its  own  corporations,  on  their  property  or 
franchises,  when  not  discriminating  against  rights  held  in  other  states, 
and  not  laid  upon  imports,  nor  exports,  nor  on  transportation  to  or 
from  other  states,  does  not  conflict  with  any  constitutional  power  of 
Congress.3 

The  Power  to  regulate  Commerce. 

§  773.  Issuing  policies  of  insurance  is  not  a  transaction  of  com- 
merce within  the  meaning  of  the  Constitution,  and  therefore  a  statute 
controlling  the  operations  within  the  state,  of  insurance  companies 
chartered  in  other  states,  is  not  a  regulation  of  commerce,  and  does 
not  interfere  with  any  power  over  commerce  conferred  upon  Con- 
gress.4 The  statute  of  Nevada  already  referred  to,  levying  a  tax 
upon  travellers  passing  through  or  beyond  the  territorial  limits,  was 
objected  to  on  the  ground  that  it  was  a  regulation  of  interstate 
commerce.  The  Supreme  Court,  while  condemning  the  tax  for 
other  reasons,  refused  to  sustain  this  objection.  Adopting  a  doctrine 
which  had  been  before  advanced  in  certain  cases,  it  held  that  the 
power  of  Congress  to  regulate  foreign  and  interstate  commerce  em- 
braces (1)  subjects  necessarily  of  a  national  character,  and  therefore 
exclusively  within  the  control  of  Congress  ;  and  (2)  subjects  of  a 
local  character,  such  as  pilots,  bridges  over  navigable  streams,  etc. 
Upon  this  latter  class  the  States  may  legislate  in  the  absence  of 
national  legislation  thereon.  The  statute  in  question  belongs  within 
this  subdivision,  and  as  there  are  no  laws  of  the  United  States  what- 
ever relating  to  the  same  matters,  it  is  not  obnoxious  to  the  objec- 
tion raised  against  it.  The  court  was  not  unanimous  in  this  decision. 
Chase,  C.  J.,  and  Clifford,  J.,  dissented,  holding  the  act  to  be  a  regu- 
lation of  interstate  commerce  exclusively  within  the  jurisdiction  of 
Congress.5    A  statute  of  Louisiana  established  port-wardens  for  New 

1  Osborne  v.  Mobile,  16  Wall.  479,  482. 

2  Reading  R.  R.  v.  Penn.  15  Wall.  284. 

3  The  Delaware  R.  R.  Tax,  18  Wall.  206,  232. 

4  Paul  v.  Virginia,  8  Wall.  168. 

8  Crandall  v.  Nevada,  6  Wall.  35. 


540  COMMERCE  AMONG  THE  STATES. 

Orleans,  and  provided  among  other  things  that  they  "  should  be 
entitled  to  demand  and  receive  in  addition  to  their  fees  the  sum  of 
$5.00,  whether  called  upon  to  perforin  any  service  or  not,  for  every 
vessel  arriving  in  that  port."  This  act  was  condemned  as  a  regu- 
lation of  foreign  commerce  forbidden  to  the  States.  The  provision 
quoted  was  an  interference  with  the  business  of  navigation  and 
traffic,  without  any  corresponding  consideration.  The  case  was  thus 
distinguishable  from  Cooley  v.  Port-wardens,  mentioned  in  the  text, 
in  which  a  statute  somewhat  similar  was  sustained.1 

§  774.  The  whole  subject  of  regulating  commerce  among  the 
States,  the  respective  powers  of  Congress  and  of  the  state  legisla- 
tures over  the  same,  was  thoroughly  discussed  in  two  or  three  very 
recent  cases  which  I  must  refer  to  at  some  length.  In  Reading 
R.  R.  v.  Pennsylvania,  or  "  Case  of  the  State  Freight  Tax,"  2  a 
statute  of  Pennsylvania  imposing  a  tax  upon  freight  taken  up  within 
the  state  and  carried  out  of  it,  or  taken  up  without  and  brought 
within  it  by  any  railroad,  was  held  to  be  void.  The  decision  was 
placed  squarely  upon  the  ground  that  the  law  was  a  regulation  of 
commerce  among  the  States,  and  that,  in  respect  to  such  subjects  at 
least,  the 'power  of  Congress  is  exclusive;  the  statute  was  therefore 
void,  although  Congress  has  never  legislated  in  relation  to  the  same 
subject  matter.  The  prevailing  opinion,  which  was  delivered  by  Mr. 
Justice  Strong,  announces  the  following  propositions  in  a  very  dis- 
tinct manner  as  the  various  steps  by  which  the  conclusion  is  reached  : 
(1)  "  The  transportation  of  the  subjects  of  commerce  [freight]  is  a 
constituent  of  commerce  itself,"  it  makes  no  difference  whether  by 
water  or  by  land.  "  In  either  case  the  bringing  the  goods  from  the 
seller  to  the  buyer  is  commerce."  3  (2)  A  tax  upon  goods  [freight] 
transported  from  state  to  state  is  a  regulation  of  commerce  among 
the  States.4  (3)  "  Whenever  the  subjects  over  which  the  power  to 
regulate  commerce  is  asserted  are  in  their  nature  national,  or  when 
they  admit  of  one  uniform  system  or  plan  of  regulation,  they  are 
within  the  exclusive  control  of  Congress."  5  (4)  The  transportation 
of  goods  and  passengers  from  one  state  to  another  is  such  a  sub- 
ject.6 Justices  SwTayne  and  Davis  dissented,  solely,  however,  on 
ihe  construction  of  the  statute,  holding  that  by  its  true  interpre- 
'.ation    it   did   not    lay  a   tax  on   die  freight.      As    they  did   not 

1   Steamship  Co.  v.  Port-wardens,  6  Wall.  31.      2  15  Wall.  232. 

»  Ibid.  p.  275.  4  Ibid.  pp.  276-278 

8  Ibid.  pp.  279,  280.  6  Ibid.  pp.  280,  281 


COMMERCE  AMONG  THE  STATES.  541 

object  to  the  other  reasoning  of  the  majority,  we  must  conclude 
that  the  court  was  unanimous  in  its  ruling  upon  the  constitu- 
tional questions  involved.  The  importance  of  this  decision  cannot 
be  over-estimated.  Although  the  direct  object  of  the  action  was 
to  test  the  validity  of  a  tax  law,  yet  this  validity  was  made 
to  rest  exclusively  upon  the  question  as  to  the  respective  powers 
of  the  nation  or  of  the  state  over  the  subject  of  interstate  com- 
merce. The  sole  objection  suggested  to  the  statute  was  its  neces- 
sary character  as  a  regulation  of  commerce.  The  ratio  decidendi. 
therefore  involved  primarily  the  matter  of  commerce  regulatior 
and  not  that  of  tax  imposition.  Keeping  in  mind  this  funda- 
mental fact,  we  find  that  the  Supreme  Court  has  settled  some 
most  important  questions.  First.  The  power  of  Congress  over 
commerce  among  the  States  is  exactly  the  same  in  kind  and  degree 
as  the  power  to  regulate  foreign  commerce.  In  respect  to  some 
elements  or  phases  of  this  interstate  commerce,  the  legislative  func- 
tion is  possessed  by  the  nation  exclusively ;  the  States  cannot  legis- 
late even  though  Congress  may  have  been  silent.  In  respect  to 
other  elements  or  phases,  the  States  are  at  liberty  to  enact  laws  as 
long  as  Congress  refrains  from  any  interference ;  but  as  soon  as  that 
body  sees  fit  to  adopt  any  measures,  these  state  laws,  so  far  as  they 
are  regulations  of  the  interstate  commerce,  are  suspended.  In 
determining  what  subjects  are  thus  exclusively  within  the  jurisdic- 
tion of  the  United  States,  the  court  has  established  a  new  and 
additional  criterion  :  namely,  that  the  subject  admits  of  one  uniform 
system  or  plan  of  regulation.  It  had  previously  been  ruled  that  if 
the  subjects  to  be  regulated  were  in  their  nature  national,  the  power 
over  them  is  confined  to  Congress  ;  but  the  second  line  of  distinction 
laid  down  by  Mr.  Justice  Strong  is  very  different,  and  restricts  the 
legislative  function  of  the  States  within  much  narrower  limits. 
Secondly.  The  court  has  determined  that  the  general  subject  of 
transporting  goods  and  passengers  from  a  state  into  or  through 
another,  is  one  which  belongs  exclusively  to  Congress  to  regulate. 
It  cannot  be  said  that  this  subject  is  peculiarly  national  in  its  nature; 
it  plainly  falls  within  the  domain  of  Congressional  legislation,  be- 
cause it  admits  of  an  uniform  system  or  plan  of  regulation.  The 
consequences  of  this  particular  ruling  are  very  far  reaching.  If  the 
matter  of  transporting  goods  and  passengers  beyond  the  boundaries 
of  a  single  state  is  one  over  which  the  States  are  forbidden  to  exer- 
cise any  control,  even  in  the  absence  of  action  by  Congress,  a  vast 
number  of  state  statutes  are  utterly  null  and  void,  and  a  very  wide 


542  STATE  CONTROL  OVER  COMMERCE. 

field  is  open  for  legislation  by  Congress.  In  fact,  without  Mich  legis- 
lation the  through  lines  of  railway  which  transact  business  from  state 
to  state  would  be  utterly  without  any  legal  control.  It  being  thus 
established  as  a  general  principle  that  the  transportation  of  goods 
and  passengers  from  state  to  state  is  a  matter  exclusively  within  the 
domain  of  Congress,  the  inquiry  remains,  what  particular  measures 
in  respect  thereof  are  propeidy  regulations  of  commerce  ?  Do  laws 
chartering  railway  and  other  companies  for  the  transaction  of  inter- 
state tratHc,  or  providing  for  connections,  and  the  running  of  trains. 
and  the  rates  of  charge,  and  the  like,  by  companies  already  existing, 
come  within  this  definition  ?  To  these  questions  no  judicial  answer 
has  yet  been  given. 

It  has  been  settled,  however,  by  a  still  more  recent  decision  of 
the  Supreme  Court,  that  a  large  mass  of  powers  of  control  and  di- 
rection over  interstate  means  of  traffic  and  transportation  still  re- 
mains in  the  state  legislatures,  and  is  exclusively  theirs,  being 
beyond  the  competency  of  Congress.  The  measures  which  the 
States  may  thus  adopt  belong  to  their  general  police  power,  and 
are  not  to  be  regarded  as  true  regulations  of  commerce,  however 
much  they  may  incidentally  affect  the  processes  of  traffic  and  trans- 
portation. This  very  important  limitation  was  announced  by  the 
court  in  Railroad  Co.  v.  Fuller.1  In  the  year  1866  Congress  passed 
a  general  statute  to  the  effect  that  railroad  companies  may  carry 
passengers  on  their  way  from  one  state  to  another  and  may  receive 
compensation  therefor.  A  state  subsequently  enacted  a  statute  re- 
quiring all  railroads  operating  within  its  territory  to  fix  their  rates 
of  charge  for  passage  at  the  commencement  of  each  year,  and  to 
cause  such  rates  to  be  posted  up  in  all  their  stations  upon  certain 
penalties.  This  statute  was  held  to  be  valid  even  in  its  application 
to  railroads  which  extend  beyond  the  boundaries  of  the  state  and 
which  carry  on  an  interstate  traffic.  It  was  declared^ not  to  be  a 
regulation  of  commerce  at  all,  but  to  be  a  matter  of  police  regula- 
tion. "  It  is  not  everything  that  affects  commerce  that  amounts  to 
a  regulation  of  it  within  the  meaning  of  the  Constitution."  From 
these  two  decisions,  which  are  easily  and  plainly  reconcilable,  it  is 
possible,  if  not  even  probable,  that  very  many  measures,  which  at 
first  blush  might  be  regarded  as  regulations  of  commerce,  will  be 
treated  as  mere  regulations  of  police,  and  therefore  within  the  au- 
yhority  of  the  state  legislatures. 

The  nature  and  effect  of  the  national  power  over  interstate  com- 

l  17  Wall.  560. 


IMPAIRING  THE  OBLIGATION  OF  CONTRACTS.         5  10 

merce  has  been  still  further  defined,  and  its  limits  still  more  accu- 
rately fixed,  in  a  decision  but  just  pronounced.  The  power  to 
regulate  commerce,  it  is  said,  was  designed  to  secure  equality  and 
freedom  in  commercial  intercourse  against  discriminating  state  leg- 
islation. It  was  not  intended  to  interfere  with  private  contracts, 
valid  when  made  and  not  designed  to  create  impediments  to  such 
intercourse.  Congress  authorized  the  construction  of  a  railroad 
bridge  across  the  Mississippi  River  at  the  city  of  Dubuque.  This 
bridge  rendered  entirely  useless  a  contract  which  had  been  pre- 
viously made  between  a  railroad  company  and  an  elevator  company, 
by  virtue  of  which  all  grain  brought  to  that  city  by  the  railroad  for 
the  purpose  of  shipment  to  points  beyond,  was  to  be  received  by 
and  stored  in  the  elevator  at  a  stipulated  rate  of  compensation.  By 
means  of  the  bridge  the  cars  were  able  to  cross  the  river  without 
breaking  bulk,  aud  there  was  no  longer  any  necessity  for  hand- 
ling and  transshipping  the  grain  at  the  elevator.  The  Supreme 
Court  held,  that  under  the  power  given  to  regulate  commerce  among 
the  States,  Congress  could  authorize  the  construction  of  the  bridge  ; 
but  this  exercise  of  the  power  had  produced  no  effect  upon  the  con- 
tract ;  that  remained  in  full  force,  notwithstanding  the  erection  of 
the  bridge  had  rendered  its  observance  useless  to  one  of  the  con- 
tracting parties.1 

Impairing  the   Obligation  of  Contracts. 

§  775.  The  principles  and  rules  heretofore  established  and  stated 
by  me  in  the  text,  in  relation  to  the  general  subject  of  impairing  the 
obligation  of  contracts,  have  been  reasserted  in  the  most  emphatic 
manner,  and  applied  to  other  and  sometimes  different  facts  and  cir- 
cumstances. 

Charters  of  Corporations.  —  The  Supreme  Court  still  maintains 
the  doctrine  that  not  only  the  charters  of  private  corporations,  but 
the  collateral  stipulations  therein,  exempting  the  corporation  from 
taxation,  or  restricting  the  state  in  the  exercise  of  its  right  of  emi- 
nent domain,  are  contracts  binding  upon  the  state,  and  cannot  be 
changed  unless  the  power  to  do  so  has  been  reserved  in  the  charter 
itself  or  in  some  prior  general  law.  A  very  strong  dissent  from 
these  positions  has,  however,  sprung  up  in  the  court.  I  shall 
briefly  mention  the  most  important  instances  in  which  this  familiar 
principle  has  been  applied.  A  general  statute  of  Missouri  provided 
that  the  legislature  shall  have  power  to  alter  or  repeal  the  charters 
of  all  private  corporations.     While  this  law  was  in  existence  the 

1  Eailroad  Co.  v.  Richiuoud,  19  Wall.  584,  589. 


544         IMPAIRING  THE  OBLIGATION  OF  CONTRACTS. 

legislature  incorporated  a  charitable  institution,  and  also  a  college, 
and  in  the  charter  of  each  declared  that  the  property  thereof  should 
be  exempt  from  taxation,  and  also  that  the  statute  first  mentioned 
above  should  not  apply  to  this  corporation.  A  tax  which  was  sub- 
sequently imposed  upon  both  of  these  institutions  was  pronounced 
null  and  void.  From  this  decision  Chase,  C.  J.,  and  Miller  and 
Field,  JJ.,  dissented.  They  denied  that  a  state  can  bargain  away 
in  this  manner  its  highest  governmental  attributes,  and  insisted  that 
the  court  should  abandon  its  position  and  overrule  the  long  series 
of  decisions  which  sustained  the  views  of  the  majority.1  A  provi- 
sion in  the  charter  of  a  bank  that  its  notes  shall  be  receivable  by  the 
state  in  payment  of  taxes  is  a  contract  running  with  the  notes  in 
favor  of  the  holders  thereof,  and  cannot  be  abrogated  by  subsequent 
legislation.2  A  state  bank  had  been  established  in  South  Carolina, 
the  whole  stock  of  which  belonged  to  the  state.  A  statute  appro- 
priating all  the  assets  of  this  corporation  for  the  payment  of  the 
general  indebtedness  of  the  state,  to  the  prejudice  of  the  bill -holders 
and  other  creditors  of  the  bank,  impaired  the  obligation  of  the  con- 
tract contained  in  the  charter  and  was  void.3  Contracts  made  for 
the  sale  of  slaves  at  a  time  when  slavery  was  legal  —  e.  g.,  notes 
given  for  their  purchase  price  —  cannot  be  invalidated  by  any  subse- 
quent state  laws  or  constitutions,  nor  is  their  validity  affected  by  the 
Xlllth  Amendment  of  the  United  States  Constitution  abolishing  slav- 
ery.4 The  obligation  of  contracts  cannot  be  impaired  by  a  change 
in  the  judicial  decisions  of  the  state  courts  by  which  they  would  be 
rendered  invalid  ;  the  term  "  laws  "  used  in  the  constitutional  provi- 
sion includes  decisions  of  courts  as  well  as  statutes  of  legislatures.5 

The  Supreme  Court  has  in  several  cases  asserted  in  the  most  em- 
phatic manner  the  doctrine  maintained  in  the  text,  in  reference  to 
the  effect  of  a  change  in  the  remedy  existing  at  the  time  the  contract 
was  entered  into.  The  principle  upon  which  that  doctrine  rests  has 
been  accepted  as  the  true  one.  It  is  now  the  settled  law  that  the 
remedy  enters  into  and  forms  a  most  material  part  of  the  obligation, 

1  Home  of  the  Friendless  v.  Rot.se,  8  Wall.  430  ;  Washington  Univer- 
sity v.  Rouse,  Ibid.  439. 

2  Fa-man  v.  Nichol,  8  Wall.  44. 
8  Barings  v.  Dabney,  19  Wall.  1. 

4  White  v.  Hart,  13  Wall.  647  ;  Osborne  v.  Nicholson,  13  Wall.  655 
Boice  v.  Tabb,  18  Wall.  546. 

6  Butts  v.  Muscatine,  8  Wall.  575  ;  Chicago  v.  Sheldon,  9  Wall.  50 
City  v.  Lampson,  Ibid.  477. 


THE  PARDONING  POWER,  545 

and  that  any  lessening  of  the  remedy  impairs  that  obligation.1  As 
an  illustration  of  this  doctrine,  where  a  judgment  creditor  had  by 
virtue  of  his  judgment  a  lien  on  the  debtor's  land,  a  subsequent 
statute,  or  provision  in  the  Constitution,  destroying  this  lien  is  void, 
since  it  impairs  the  obligation  by  impairing  the  remedy.  Although 
the  court  do  not  expressly  decide  the  general  question  as  to  the  effect 
of  such  exemption  laws  upon  contracts  at  large,  where  no  lien  has 
been  actually  created  by  the  entry  of  judgment,  but  only  the  right 
thereto  exists  as  a  part  of  the  remedy,  yet  the  whole  reasoning  of 
the  opinion  includes  this  case  and  condemns  the  law.  The  decision 
is  distinctly  placed  upon  the  ground  that  the  existing  legal  remedy 
enters  into  and  forms  a  part  of  the  obligation,  and  that  although  the 
remedy  may  be  changed  in  form  if  not  lessened  in  efficacy,  what- 
ever does  impair  it  impairs  the  obligation.2 

The  force  and  effect  of  a  reservation  by  a  state,  either  in  the  char- 
ter itself  or  in  a  prior  statute,  of  power  to  alter,  amend,  or  repeal  the 
charter,  have  been  carefully  considered  and  fully  determined.  The 
following  language  was  used  by  the  court  in  announcing  the  general 
doctrine  which  it  had  adopted  :  "  The  reservation  affects  the  entire 
relations  between  the  state  and  the  corporation,  and  places  under 
legislative  control  all  rights,  privileges,  and  immunities  derived  by 
its  charter  directly  from  the  state.  Rights  acquired  by  third  parties 
which  have  become  vested,  under  the  charter,  stand  upon  a  different 
footing.  The  state  in  the  present  case  only  asserts  its  power  under 
the  reservation  to  modify  its  own  contract  with  the  corporation  ;  it 
does  not  contend  for  a  power  to  revoke  the  contracts  of  the  corpora 
tion  with  other  parties."  3 

The  Pardoning  Poioer. 

§  776.  All  the  propositions  of  the  text  in  reference  to  the  par- 
doning power  of  the  President  have  been  reaffirmed  and  fully  es- 
tablished as  part  of  the  constitutional  law  of  the  land.  Pardons 
are  a  matter  exclusively  within  the  executive  authority.  The  va- 
lidity of  those  conferred  by  a  general  amnesty  proclamation  is  placed 

1  Butts  v.  Muscatine,  8  "Wall.  575,  583  ;  Walker  v.  Whitehead,  16 
Wall.  314  ;  Olcott  v.  Supervisors,  16  Wall.  678. 

2  Gunn  v.  Barry,  15  Wall.  610,  622,  623. 

8  Tomlinson  v.  Jessup,  15  Wall.  454,  459.  For  other  cases  in  respect 
.o  the  power  of  repealing  or  amending  charters,  see  Miller  v.  State,  15 
Wall.  4  78  ;  Ilolyoke  Co.  v.  Lyman,  1*!  Wall.  500  ;  Pennsylvania  College 
Cases,  13  Wall.  190. 

35 


546  THE  JUDICIAL  POWER. 

beyond  a  doubt ;  the  questions  suggested  in  the  text  have  received 
tlic  same  answers  by  the  court  that  were  given  by  the  author.  Af- 
ter 1 1 1 i ~i  result  had  been  announced  and  the  President's  amnesty  had 

been  judicially  sustained.  Congress  attempted  to  destroy  or  at  least 
restrict  its  practical  effect  by  legislation.  A  statute  was  passed  which 
declared  that  the  acceptance  by  any  person  of  a  pardon  should  he 
conclusive  evidence  that  he  had  been  guilty  of  the  offences  which 
were  condoned,  and  his  guilt  being  thus  established,  he  should  be* 
precluded  from  enforcing  certain  legal  rights  and  claims  against  the 
government  which  the  Supreme  Court  had  previously  decided  might 
be  enforced  by  persons  who  had  received  the  executive  pardon. 
This  statute  the  court  pronounced  wholly  null  and  void,  because  it 
invaded  both  the  exclusive  province  of  the  judiciary  by  changing  the 
legal  import  of  their  judgments,  and  of  the  President,  by  restricting 
the  force  and  effect  of  the  pardoning  power  which  had  been  con- 
ferred upon  him  alone.1 

The  Judicial  Power. 

§  777.  The  essential  nature  of  the  judicial  power,  and  the  classes 
of  subjects  to  which  it  extends,  and  its  relations  with  the  coordi- 
nate functions  of  government  —  the  legislative  and  executive,  were 
most  carefully  examined  and  accurately  determined  in  cases  which 
grew  out  of  the  proceedings  adopted  by  Congress  for  the  purpose  of 
restoring  the  insurgent  states  to  their  normal  condition  in  the  Union. 
The  State  of  Georgia  commenced  an  action  in  the  Supreme  Court 
of  the  United  States  against  Mr.  Stanton,  the  Secretary  of  War,  and 
others,  in  order  to  restrain  them  from  carrying  into  effect  the  stat- 
utes commonly  known  as  "  the  reconstruction  acts,"  on  the  ground 
that  they  would  overthrow  the  legitimate  government  already  estab- 
lished in  the  state,  and  would  set  up  another  one  in  its  place.  The 
court  held  that  the  subject  matter  thus  brought  before  it  was  wholly 
political  and  belonged  exclusively  to  the  legislative  and  the  execu- 
tive departments,  and  therefore  dismissed  the  suit  for  want  of  juris- 
diction. The  opinion  contains  a  very  careful  and  instructive  exam- 
ination of  the  jurisdiction  of  courts  over  the  subject  matter  of  a 
controversy,  and  especially  defines  the  instances  where  such  subject 
matter  is  political  and  therefore  not  within  the  purview  of  judicial 
action.  No  support,  however,  is  given  to  the  absurd  notion  which 
has  sometimes  been  advanced,  that  in  all  cases  wherever  the  contro- 
versy calls  for  a  decision  upon  the  validity  of  a  statute  of  Congress, 

1  U.  S.v.  Klein,  13  Wall.  128. 


THE  JUDICIAL  POWER  547 

the  subject-matter  is  necessarily  political.  Such  a  doctrine  if  ac- 
cepted would  at  once  strip  that  high  tribunal  of  much  of  its  power 
to  adjudicate  upon  questions  of  constitutional  law,  and  would  virtu- 
ally make  the  legislature  the  sole  expounder  of  that  law.  The  sub- 
ject matter  of  a  controversy  is  in  this  sense  political  and  beyond  the 
domain  of  the  judiciary,  only  where  it  involves  the  existence  de  jure 
of  a  government,  or  the  legality  of  some  act  or  proceeding  purely 
governmental.1 

1  State  of  Georgia  v.  Stanton,  6  Wall.  50. 


THE 

CONSTITUTION   OF   THE   UNITED   STATES. 


We,  the  People  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  ensure  domestic  tranquillity,  pro- 
vide for  the  common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  of 
America. 

Article  I. 

Section  1. —  1.  All  legislative  powers  herein  granted,  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist  of  a 
senate  and  house  of  representatives. 

Section  2. —  1.  The  house  of  representatives  shall  be  composed 
of  members  chosen  every  second  year  by  the  people  of  the  several 
states ;  and  the  electors  in  each  state  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  state 
legislature. 

2.  No  person  shall  be  a  representative  who  shall  not  have  at- 
tained to  the  age  of  twenty-five  years,  and  been  seven  years  a  cit- 
izen of  the  United  States,  and  who  shall  not,  when  elected,  be  an 
inhabitant  of  that  state  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  states  which  may  be  included  within  this  Union,  accord- 
ing to  their  respective  numbers,  which  shall  be  determined  by  add- 
ing to  the  whole  number  of  free  persons,  including  those  bound 
to  service  for  a  term  of  years,  and  excluding  Indians  not  taxed, 
three  fifths  of  all  other  persons.  The  actual  enumeration  shall  be 
made  within  three  years  after  the  first  meeting  of  the  Congress  of 
the  United  States,  and  within  every  subsequent  term  of  ten  years, 
in  such  manner  as  they  shall  by  law  direct.  The  number  of  rep- 
resentatives shall  not  exceed  one  for  every  thirty  thousand,  but 
each  state  shall  have  at  least  one  representative ;  and  until  such 


THE   CONSTITUTION   OF   THE   UNITED   STATES.      549 

enumeration  shall  be  made,  the  State  of  New-Hampshire  shall  be 
entitled  to  choose  three  ;  Massachusetts,  eight ;  Rhode  Island  and 
Providence  Plantations,  one  ;  Connecticut,  five  ;  New- York,  six  ; 
New-Jersey,  four ;  Pennsylvania,  eight ;  Delaware,  one  ;  Maryland, 
six  ;  Virginia,  ten  ;  North-Carolina,  five  ;  South-Carolina,  five  ;  and 
Georgia,  three. 

4.  When  vacancies  happen  in  the  representation  from  any  state, 
the  executive  authority  thereof  shall  issue  writs  of  election  to  fill 
such  vacancies. 

5.  The  house  of  representatives  shall  choose  their  speaker  and 
other  officers,  and  shall  have  the  sole  power  of  impeachment. 

Section  3.  —  1.  The  senate  of  the  United  States  shall  be  com- 
posed of  two  senators  from  each  state,  chosen  by  the  legislature 
thereof,  for  six  years ;  and  each  senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  consequence 
of  the  first  election,  they  shall  be  divided  as  equally  as  may  be  into 
three  classes.  The  seats  of  the  senators  of  the  first  class  shall  be 
vacated  at  the  expiration  of  the  second  year,  of  the  second  class  at 
the  expiration  of  the  fourth  year,  and  of  the  third  class  at  the  ex- 
piration of  the  sixth  year,  so  that  one  third  may  be  chosen  every 
second  year  ;  and  if  vacancies  happen,  by  resignation  or  otherwise, 
during  the  recess  of  the  legislature  of  any  state,  the  executive 
thereof  may  make  temporary  appointments  until  the  next  meeting 
of  the  legislature,  which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  attained  the 
age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
state  for  which  he  shall  be  chosen. 

4.  The  vice-president  of  the  United  States  shall  be  president 
of  the  senate,  but  shall  have  no  vote  unless  they  be  equally  di- 
vided, 

5.  The  senate  shall  choose  their  other  officers,  and  also  a  presi- 
dent pro  tempore  in  the  absence  of  the  vice-president,  or  when  he 
shall  exercise  the  office  of  president  of  the  United  States. 

6.  The  senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  president  of  the  United  States  is  tried,  the  chief  justice 
shall  preside :  and  no  person  shall  be  convicted  without  the  concur- 
-ence  of  two  thirds  of  the  members  present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  to  removal  from  office,  and  disqualification  to  hold  and  enjoy 


550      THE    CONSTITUTION   OF   THE   UNITED    STATES. 

any  office  of  honor,  trust  or  profit  under  the  United  States :  but 
the  party  convicted  shall,  nevertheless,  be  liable  and  subject  to  in- 
dictment, trial,  judgment  and  punishment,  according  to  law. 

Section  4.  —  1.  The  times,  places,  and  manner  of  holding  elec- 
tions for  senators  and  representatives  shall  be  prescribed  in  each 
state  by  the  legislature  thereof;  but  the  congress  may  at  any  time, 
by  law  make  or  alter  such  regulations,  except  as  to  the  places  of 
choosing  senators. 

2.  The  congress  shall  assemble  at  least  once  m  every  year ;  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  law  appoint  a  different  day. 

Section  5.  —  1.  Each  house  shall  be  the  judge  of  the  elections, 
returns  and  qualifications  of  its  own  members,  and  a  majority  of 
each  shall  constitute  a  quorum  to  do  business  ;  but  a  smaller  num- 
ber may  adjourn  from  day  to  day,  and  may  be  authorized  to  compel 
the  attendance  of  absent  members,  in  such  manner  and  under  such 
penalties  as  each  house  may  provide. 

2.  Each  house  may  determine  the  rule  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and  with  the  concurrence  of 
two  thirds,  expel  a  member. 

3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may  in  their 
judgment  require  secrecy ;  and  the  yeas  and  nays  of  the  members 
of  either  house  on  any  question,  shall,  at  the  desire  of  one  fifth  of 
those  present,  be  entered  on  the  journal. 

4.  Neither  house,  during  the  session  of  congress,  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days,  nor 
to  any  other  place  than  that  in  which  the  two  houses  shall  be 
sitting. 

Section  6.  —  1.  The  senators  and  representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by  law,  and  paid 
out  of  the  treasury  of  the  United  States.  They  shall,  in  all  cases 
except  treason,  felony,  and  breach  of  the  peace,  be  privileged  from 
arrest  during  their  attendance  at  the  session  of  their  respective 
houses,  and  in  going  to  and  returning  from  the  same  ;  and  for  any 
speech  or  debate  in  either  house,  they  shall  not  be  questioned  in 
any  other  place. 

2.  No  senator  or  representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  authority 
>f  the  United  States,  which  shall  have  been  created,  or  the  emolu- 
ments whereof  shall  have  been  increased  during  such  time ;  and 


THE    CONSTITUTION   OF   THE   UNITED    STATES.      551 

no  person  holding  any  office  under  the  United  States  shall  he  a 
member  of  either  house  during  his  continuance  in  office. 

Section  7.  —  1.  All  bills  for  raising  revenue  shall  originate  in  the 
house  of  representatives ;  but  the  senate  may  propose  or  concur 
with  amendments  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  house  of  representa- 
tives and  the  senate,  shall,  before  it  becomes  a  law,  be  presented  to 
the  president  of  the  United  States;  if  he  approve,  he  shall  sign  it ; 
but  if  not,  he  shall  return  it  with  his  objections,  to  that  house  in 
which  it  shall  have  originated  ;  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If,  after  such 
reconsideration,  two  thirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other  house, 
by  which  it  shall  likewise  be  reconsidered;  and  if  approved  by 
two  thirds  of  that  house,  it  shall  become  a  law.  But  in  all  cases 
the  votes  of  both  houses  shall  be  determined  by  yeas  and  nays,  and 
the  names  of  the  persons  voting  for  and  against  the  bill  shall  be 
entered  on  the  journal  of  each  house  respectively.  If  any  bill 
shall  not  be  returned  by  the  president  within  ten  days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the  same  shall 
be  a  law  in  like  manner  as  if  he  had  signed  it,  unless  the  congress 
by  their  adjournment  prevent  its  return,  in  which  case  it  shall  not 
be  a  law. 

8.  Every  order,  resolution  or  vote  to  which  the  concurrence  of 
the  senate  and  house  of  representatives  may  be  necessary,  (except 
on  a  question  of  adjournment,)  shall  be  presented  to  the  president 
of  the  United  States ;  and  before  the  same  shall  take  effect,  shall 
be  approved  by  him ;  or  being  disapproved  by  him,  shall  be  re- 
passed by  two  thirds  of  the  senate  and  house  of  representatives, 
according  to  the  rules  and  limitations  prescribed  in  the  case  of  a 
bill. 

Section  8.  —  The  congress  shall  have  power  — 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises  ;  to  pay 
the  debts,  and  provide  for  the  common  defence  and  general  welfare 
of  the  United  States  ;  but  all  duties,  imposts  and  excises  shall  be 
uniform  throughout  the  United  States  : 

2.  To  borrow  money  on  the  credit  of  the  United  States : 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the 
several  states,  and  with  the  Indian  tribes  : 

4.  To  establish  an  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United  States : 


552      THE   CONSTITUTION   OF   THE   UNITED   STATES. 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
Doin,  and  fix  the  standard  of  weights  and  measures  : 

G.  To  provide  for  the  punishment  of  counterfeiting  the  securities 
and  current  coin  of  the  United  States : 

7.  To  establish  post-offices  and  post-roads : 

8.  To  promote  the  progress  of  science  and  useful  arts,  by  secur- 
ing for  limited  times,  to  authors  and  inventors,  the  exclusive  right 
to  their  respective  writings  and  discoveries  : 

9.  To  constitute  tribunals  inferior  to  the  supreme  court : 

10.  To  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offences  against  the  law  of  nations : 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water: 

12.  To  raise  and  support  armies  ;  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years : 

13.  To  provide  and  maintain  a  navy  : 

14.  To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces : 

15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  union,  suppress  insurrections,  and  repel  invasions : 

16.  To  provide  for  organizing,  arming  and  disciplining  the  mili- 
tia, and  for  governing  such  part  of  them  as  may  be  employed  in 
the  service  of  the  United  States  ;  reserving  to  the  states  respective- 
ly the  appointment  of  the  officers  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  congress : 

17.  To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by  cession 
of  particular  states,  and  the  acceptance  of  congress,  become  the 
seat  of  government  of  the  United  States ;  and  to  exercise  like  au- 
\hority  over  all  places  purchased,  by  the  consent  of  the  legislature 
of  the  state  in  which  the  same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  dock-yards,  and  other  needful  buildings:  — 
and 

18.  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof. 

Section  9. —  1.  The  migration  or  importation  of  such  persons  as 
any  of  the  states  now  existing  shall  think  proper  to  admit,  shall 
not  be  prohibited  by  the  congress  prior  to  the  year  one  thousand 
eight  hundred  and  eight ;  but  a  tax  or  duty  may  be  imposed  or 
such  importation  not  exceeding  ten  dollars  for  each  person. 


THE  CONSTITUTION  OF  THE   UNITED   STATES.        553 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  he  sus- 
pended, unless  when,  in  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  it. 

3.  No  bill  of  attainder,  or  ex  post  facto  law,  shall  be  passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  pro- 
portion to  the  census  or  enumeration  herein  before  directed  to  be 
taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
state 

6.  No  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  state  over  those  of  another ;  nor 
shall  vessels  bound  to  or  from  one  state,  be  obliged  to  enter,  clear 
or  pay  duties  in  another. 

7.  No  money  shall  be  drawn  from  the  treasury,  but  in  conse- 
quence of  appropriations  made  by  law ;  and  a  regular  statement 
and  account  of  the  receipts  and  expenditures  of  all  public  money 
shall  be  published  from  time  to  time. 

8.  No  title  of  nobility  shall  be  granted  by  the  United  States ; 
and  no  person  holding  any  office  of  profit  or  trust  under  them,  shall, 
without  the  consent  of  the  congress,  accept  of  any  present,  emolu- 
ment, office,  or  title  of  any  kind  whatever,  from  any  king,  prince, 
or  foreign  state. 

Section  10.  —  1.  No  state  shall  enter  into  any  treaty,  alliance,  or 
confederation  ;  grant  letters  of  marque  and  reprisal ;  coin  money  ; 
emit  bills  of  credit ;  make  anything  but  gold  and  silver  coin  a  ten- 
der in  payment  of  debts ;  pass  any  bill  of  attainder,  ex  post  facto 
law,  or  law  impairing  the  obligation  of  contracts  ;  or  grant  any  title 
of  nobility. 

2.  No  state  shall  without  the  consent  of  the  congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws ;  and  the  nett 
produce  of  all  duties  and  imposts  laid  by  any  state  on  imports  or 
exports,  shall  be  for  the  use  of  the  Treasury  of  the  United  States, 
and  all  such  laws  shall  be  subject  to  the  revision  and  control  of  the 
congres?. 

3.  No  state  shall,  without  the  consent  of  congress,  lay  any  duty 
of  tonnage,  keep  troops  or  ships  oC  war  in  time  of  peace,  enter 
'nto  any  agreement  or  compact  with  another  state,  or  with  a  for- 
eign power,  or  engage  in  war,  unless  actually  invaded,  or  in  such 
imminent  danger  as  will  not  admit  of  delay. 


554        THE   CONSTITUTION   OF   THE   UNITED    STATES. 

Article  IT. 

Section  1.  —  1.  The  executive  power  shall  be  vested  in  a  presi- 
dent of  the  United  States  of  America.  He  shall  hold  his  office 
during  the  term  of  four  years ;  and,  together  with  the  vice-presi- 
dent chosen  for  the  same  term,  be  elected  as  follows  : 

2.  Each  state  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors  equal  to  the  whole  num- 
ber of  senators  and  representatives  to  which  the  state  may  be  en- 
titled in  the  congress;  but  no  senator  or  representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United  States,  shall 
be  appointed  an  elector. 

.  3.  The  electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  inhab- 
itant of  the  same  state  with  themselves.  And  they  shall  make  a 
list  of  all  the  persons  voted  for,  and  of  the  number  of  votes  for 
each ;  which  list  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  the  government  of  the  United  States  directed  to  the 
president  of  the  senate.  The  president  of  the  senate  shall,  in  the 
presence  of  the  senate  and  house  of  representatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted.  The  person  hav- 
ing the  greatest  number  of  votes  shall  be  the  president,  if  such 
number  be  a  majority  of  the  whole  number  of  electors  appointed  ; 
and  if  there  be  more  than  one  who  have  such  majority,  and  have 
an  equal  number  of  votes,  then  the  house  of  representatives  shall 
immediately  choose,  by  ballot,  one  of  them  for  president ;  and  if 
no  person  have  a  majority,  then,  from  the  five  highest  on  the  list ; 
the  said  house  shall,  in  like  manner,  choose  the  president.  But  in 
choosing  the  president,  the  votes  shall  be  taken  by  states,  the  rep- 
resentation from  each  state  having  one  vote ;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two  thirds  of 
the  states,  and  a  majority  of  all  the  states  shall  be  necessary  to  a 
choice.  In  every  case,  after  the  choice  of  the  president,  the  person 
having  the  greatest  number  of  votes  of  the  electors  shall  be  the 
vice-president.  But  if  there  should  remain  two  or  more  who  have 
equal  votes,  the  senate  shall  choose  from  them  by  ballot,  the  vice- 
prssident. 

4.  The  congress  may  determine  the  time  of  choosing  the  elect- 
ors, and  the  day  on  which  they  shall  give  their  votes,  which  daj 
shall  be  the  same  throughout  the  United  States. 


THE    CONSTITUTION   OF   THE   UNITED   STATES.      000 

5.  No  person,  except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  constitution,  shall 
be  eligible  to  the  office  of  president  ;  neither  shall  any  person  be 
eligible  to  that  office  who  shall  not  have  attained  to  the  age  of 
thirty-five  years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

6.  In  case  of  the  removal  of  the  president  from  office  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties 
of  the  said  office,  the  same  shall  devolve  on  the  vice-president ;  and 
the  congress  may,  by  law,  provide  for  the  case  of  removal,  death, 
resignation  or  inability,  both  of  the  president  and  vice-president, 
declaring  what  officer  shall  then  act  as  president ;  and  such  officer 
shall  act  accordingly,  until  the  disability  be  removed,  or  a  president 
shall  be  elected. 

7.  The  president  shall,  at  stated  times,  receive  for  his  services  a 
compensation,  which  shall  neither  be  increased  or  diminished  dur- 
ing the  period  for  which  he  shall  have  been  elected ;  and  he  shall 
not  receive  within  that  period  any  other  emolument  from  the  United 
States,  or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall  take 
the  following  oath  or  affirmation  : 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States :  and  will,  to  the  best 
of  my  ability,  preserve,  protect  and  defend  the  Constitution  of  the 
United  States." 

Section  2.  —  1.  The  president  shall  be  commander-in-chief  of 
the  army  and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  states,  when  called  into  the  actual  service  of  the  United 
States.  He  may  require  the  opinion,  in  writing,  of  the  principal 
officer  in  each  of  the  executive  departments,  upon  any  subject  re- 
lating to  the  duties  of  their  respective  offices  ;  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offences  against  the 
United  States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent  of 
the  senate  to  make  treaties,  provided  two  thirds  of  the  senators 
present  concur  ;  and  he  shall  nominate,  and  by  and  with  the  advice 
and  consent  of  the  senate,  shall  appoiri.  ambassadors,  other  public 
ministers  and  consuls,  judges  of  the  supreme  court,  and  all  other 
officers  of  the  United  States  whose  appointments  are  not  herein 
otherwise  provided  for,  and  which  shall  be  established  by  law.  But 
khe  co.igre.ss  may,  by  law,  vest  the  appointment  of  such  inferior  of- 


556      THE   CONSTITUTION  OF  THE  UNITED   STATES. 

ficers  as  they  think  proper,  in  the  president  alone,  in  the  courts  of 
law,  or  in  the  heads  of  departments. 

3.  The  president  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  senate,  by  granting  commis- 
sions which  shall  expire  at  the  end  of  their  next  session. 

Section  o. —  1.  lie  shall  from  time  to  time,  give  to  the  congress 
information  of  the  state  of  the  Union,  and  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and  expe- 
dient. He  may,  on  extraordinary  occasions,  convene  both  houses, 
oi  either  of  them  ;  and  in  case  of  disagreement  between  them,  with 
respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such 
time  as  he  shall  think  proper.  He  shall  receive  ambassadors  and 
other  public  ministers.  He  shall  take  care  that  the  laws  be  faith- 
fully executed ;  and  shall  commission  all  the  officers  of  the  United 
States. 

Section  4.  —  1.  The  president,  vice-president,  and  all  civil  officers 
of  the  United  States,  shall  be  removed  from  office  on  impeachment 
for,  and  conviction  of  treason,  bribery,  or  other  high  crimes  and 
misdemeanors. 

Article   III. 

Section  1.  —  1.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  supreme  court,  and  in  such  inferior  courts  as  the 
congress  may,  from  time  to  time,  ordain  and  establish.  The  judges, 
both  of  the  supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behavior ;  and  shall,  at  stated  times  receive  for  their 
services  a  compensation,  which  shall  not  be  diminished  during  their 
continuance  in  office. 

Section  2.  —  1.  The  judicial  power  shall  extend  to  all  cases  in 
law  and  equity  arising  under  this  constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made,  under 
their  authority ;  to  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls  ;  to  all  cases  of  admiralty  and  maritime  ju- 
risdiction ;  to  controversies  to  which  the  United  States  shall  be  a 
party  ;  to  controversies  between  two  or  more  states ;  between  a 
state  and  citizens  of  another  state,  between  citizens  of  different 
states,  between  citizens  of  the  same  state  claiming  lands  uuder 
grants  of  different  states,  and  between  a  state,  or  the  citizens 
thereof,  and  foreign  states,  citizens  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers  and 
•jonsuik,  and  those  in  which  a  state  shall  be  party,  the  supreme 


THE    CONSTITUTION   OF   THE   UNITED   STATES.        557 

court  shall  have  original  jurisdiction.  In  all  the  other  cases  be- 
fore mentioned,  the  supreme  court  shall  have  appellate  jurisdic- 
tion, both  as  to  law  and  fact,  with  such  exceptions  and  under  such 
regulations  as  the  congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall 
be  by  jury,  and  such  trial  shall  be  held  in  the  state  where  the  said 
crimes  shall  have  been  committed  ;  but  when  not  committed  with- 
in any  state,  the  trial  shall  be  at  such  place  or  places  as  the  con- 
gress may  by  law  have  directed. 

Section  3. —  1.  Treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  convicted  of 
treason,  unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court. 

2.  The  congress  shall  have  power  to  declare  the  punishment  of 
treason  ;  but  no  attainder  of  treason  shall  work  corruption  of  blood, 
or  forfeiture,  except  during  the  life  of  the  person  attainted. 

Article  IV. 

Section  1.  —  1.  Full  faith  and  credit  shall  be  given  in  each  state 
to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
state ;  and  the  congress  may,  by  general  laws,  prescribe  the  man- 
ner in  which  such  acts,  records,  and  proceedings,  shall  be  proved, 
and  the  effect  thereof. 

Section  2. — 1.  The  citizens  of  each  state  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  states. 

2.  A  person  charged  in  any  state  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  state, 
shall  on  demand  of  the  executive  authority  of  the  state  from  which 
he  fled,  be  delivered  up,  to  be  removed  to  the  state  having  juris- 
diction of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  state  under  the  laws 
thereof,  escaping  into  another,  shall  in  consequence  of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labor  ;  but 
shall  be  delivered  up  on  claim  of  the  party  to  whom  such  service 
->r  labor  may  be  due. 

Section  3. —  1.  New  states  maybe  admitted  by  the  congress  into 
his  Union :  but  no  new  state  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  state,  nor  any  state  be  formed  by  the 
junction  of  two  or  more  states  or  parts  of  states,  without  the  con- 
tent of  the  legislatures  of  the  states  concerned,  as  well  as  of  the 
congress. 


558      THE  CONSTITUTION  OF  THE   UNITED   STATES. 

2.  The  congress  shall  have  power  to  dispose  of,  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other  prop- 
erty belonging  to  the  United  States;  and  nothing  in  this  constitu- 
tion shall  be  so  construed  as  to  prejudice  any  claims  of  the  United 
States,  or  of  any  particular  state. 

Section  4.  —  1.  The  United  States  shall  guarantee  to  every  state 
in  this  union  a  republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion  ;  and,  on  application  of  the  legisla- 
ture, or  of  the  executive,  (when  the  legislature  cannot  be  con- 
vened,) against  domestic  violence. 

Article  V. 

1.  The  congress,  whenever  two  thirds  of  both  houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  constitution  ;  or,  on 
the  application  of  the  legislatures  of  two  thirds  of  the  several 
states,  shall  call  a  convention  for  proposing  amendments,  which,  in 
either  case,  shall  be  valid  to  all  intents  and  purposes,  as  part  of  this 
constitution,  when  ratified  by  the  legislatures  of  three  fourths  of 
the  several  states,  or  by  conventions  in  three  fourths  thereof,  as  the 
one  or  the  other  mode  of  ratification  may  be  proposed  by  the  con- 
gress ;  provided  that  no  amendment  which  may  be  made  prior  to 
the  year  one  thousand  eight  hundred  and  eight,  shall  in  any  man 
ner  affect  the  first  and  fourth  clauses  in  the  ninth  section  of  the 
first  article ;  and  that  no  state,  without  its  consent,  shall  be  de 
prived  of  its  equal  suffrage  in  the  senate. 

Article  VI. 

1.  All  debts  contracted  and  engagements  entered  into  before  the 
adoption  of  this  constitution,  shall  be  as  valid  against  the  United 
States  under  this  constitution,  as  under  the  confederation. 

2.  This  constitution,  and  the  laws  of  the  United  States,  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land ;  and  the  judges  in  every  state  shall 
be  bound  thereby,  anything  in  the  constitution  or  laws  of  any  state 
to  the  contrary  notwithstanding. 

3.  The  senators  and  representatives  before  mentioned,  and  the 
members  of  the  several  state  legislatures,  and  all  executive  and  ju- 
dicial officers,  both  of  the  United  States  and  of  the  several  states. 
shall  be  bound  by  oath  or  affirmation  to  support  this  constitution 


THE   CONSTITUTION   OF    THE   UNITED    STATES.      559 

but  no  religious  test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust  under  the  United  States. 

Article  VII. 

1  The  ratification  of  the  conventions  of  nine  states  shall  be 
sufficient  for  the  establishment  of  this  constitution  between  the 
states  so  ratifying  the  same. 

AMENDMENTS. 

Article  I. 

Congress  shall  make  no  law  respecting  an  establishment  of  re- 
ligion, or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech  or  of  the  press ;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  government  for  a  redress 
of  grievances. 

Article  II. 

A  well  regulated  militia  being  necessary  to  the  security  of  a  free 
state,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed. 

Article  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house 
without  the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a  man- 
ner to  be  prescribed  by  law. 

Article  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers  and  effects,  against  unreasonable  searches  and  seizures,  shall 
not  be  violated  ;  and  no  warrants  shall  issue  but  upon  probable 
cause,  supported  by  oath  or  affirmation,  and  particularly  describing 
the  place  to  be  searched,  and  the  persons  or  things  to  be  seized. 

Article  V 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  in- 
pamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public  danger ; 
nor  shall  any  person  be  subject  for  the  same  offence  to  be  twice 
put  in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled,  in  any 


560      THE   CONSTITUTION   OF   THE   UNITED    STATES. 

criminal  case  to  be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty  or  property,  without  due  process  of  law  ;  nor  shall  pri- 
vate property  be  taken  for  public  use,  without  just  compensation. 

Article  VI. 
In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and 
district  wherein  the  crime  shall  have  been  committed,  which  dis- 
trict shall  have  been  previously  ascertained  by  law  ;  and  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation  ;  to  be  confront- 
ed with  the  witnesses  against  him  ;  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of 
counsel  for  his  defence. 

Article  VII. 
In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved  ; 
and  no  fact  tried  by  a  jury  shall  be  otherwise  reexamined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the  com- 
mon law. 

Article  VIII. 

Excessive   bail   shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted. 

Article  IX. 
The  enumeration  in  the  constitution  of  certain  rights,  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people. 

Article  X. 
The  powers  not  delegated  to  the  United  States  by  the  constitu 
tion,  nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states 
respectively,  or  to  the  people. 

Article  XL 
The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state  or  by 
citizens  or  subjects  of  any  foreign  state. 

Article  XII. 
1.  The  electors  shall  meet  in  their  respective  states,  and  vote  by 
oallot  for  president  and  vice-president,  one  of  whom  at  least,  shal 


THE  CONSTITUTION  OF  THE  UNITED   STATES.      561 

not  be  an  inhabitant  of  the  same  state  with  themselves.  They 
shall  name  in  their  ballots  the  person  voted  for  as  president,  and  in 
distinct  ballots,  the  person  voted  for  as  vice-president ;  and  they 
shall  make  distinct  lists  of  all  persons  voted  for  as  president,  and 
of  all  persons  voted  for  as  vice-president  and  of  the  number  of 
votes  for  each;  which  lists  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  the  government  of  the  United  States,  directed 
to  the  president  of  the  senate.  The  president  of  the  senate  shall, 
in  the  presence  of  the  senate  and  house  of  representatives,  open 
all  the  certificates,  and  the  votes  shall  then  be  counted.  The  per- 
son having  the  greatest  number  of  votes  for  president,  shall  be  the 
president,  if  such  number  be  a  majority  of  the  whole  number  of 
electors  appointed  ;  and  if  no  person  have  such  majority,  then  from 
the  persons  having  the  highest  numbers,  not  exceeding  three,  on 
the  list  of  those  voted  for  as  president,  the  house  of  representatives 
shall  choose  immediately,  by  ballot,  the  president.  But,  in  choos- 
ing the  president,  the  votes  shall  be  taken  by  states,  the  represen- 
tation from  each  state  having  one  vote  ;  a  quorum  for  this  purpose 
shall  consist  of  a  member  or  members  from  two  thirds  of  the  states, 
and  a  majority  of  all  the  states  shall  be  necessary  to  a  choice.  And 
if  the  house  of  representatives  shall  not  choose  a  president  when- 
ever the  right  of  choice  shall  devolve  upon  them,  before  the  fourth 
day  of  March  next  following,  then  the  vice-president  shall  act  as 
president,  as  in  the  case  of  the  death  or  other  constitutional  disabil- 
ity of  the  president. 

2.  The  person  having  the  greatest  number  of  votes  as  vice-pres- 
ident shall  be  the  vice-president,  if  such  number  be  a  majority  of 
the  whole  number  of  electors  appointed,  and  if  no  person  have  a 
majority,  then  from  the  two  highest  numbers  on  the  list,  the  senate 
shall  choose  the  vice-president.  A  quorum  for  the  purpose  shall 
consist  of  two  thirds  of  the  whole  number  of  senators,  and  a  ma- 
jority of  the  whole  number  shall  be  necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office  of  pres- 
ident, shall  be  eligible  to  that  o^  vice-president  of  the  United 

States. 

Article  XIII. 

1.  Neither  slavery  nor  involuntary  servitude,  except  as  punish- 
ment for  crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  in  any  place  subject  to 
their  jurisdiction. 

2.  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation. 

36 


562         THE  CONSTITUTION  OF  THE  UNITED  STATES. 

Article  XIV. 

1.  All  persons  born  or  naturalized  in  the  United  States  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and 
of  the  state  wherein  they  reside.  No  state  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States  ;  nor  shall  any  state  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law,  nor  deny  to  any  per- 
son within  its  jurisdiction  the  equal  protection  of  the  laws. 

2.  Representatives  shall  be  apportioned  among  the  several  states 
according  to  their  respective  numbers,  counting  the  whole  number 
of  persons  in  each  state,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  electors  for  Presi- 
dent and  Vice-President  of  the  United  States,  representatives  in 
Congress,  the  executive  and  judicial  officers  of  a  state,  or  the  mem- 
bers of  the  legislature  thereof,  is  denied  to  any  of  the  male  inhabit- 
ants of  such  state  being  twenty-one  years  of  age  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  participation  in 
rebellion  or  other  crime,  the  basis  of  representation  therein  shall  be 
reduced  in  the  proportion  which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  state. 

3.  No  person  shall  be  a  senator  or  representative  in  Congress,  or 
elector  of  President  and  Vice-President,  or  hold  any  office,  civil  or 
military,  under  the  United  States  or  under  any  state,  who  having 
previously  taken  an  oath  as  a  member  of  Congress,  or  as  an  officer 
of  the  United  States,  or  as  a  member  of  any  state  legislature,  or  as 
an  executive  or  judicial  officer  of  any  state,  to  support  the  Constitu- 
tion of  the  United  States,  shall  have  engaged  in  insurrection  or  re- 
bellion against  the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.  But  Congress  may,  by  a  vote  of  two  thirds  of  each  house, 
remove  such  disability. 

4.  The  validity  of  the  public  debt  of  the  United  States  authorized 
by  law,  including  debts  incurred  for  payment  of  pensions  and  boun- 
ties for  services  in  suppressing  insurrection  or  rebellion,  shall  not  be 
questioned.  But  neither  the  United  States  nor  any  state  shall 
assume  or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrection 
or  rebellion  against  the  United  States,  or  any  claim  for  the  loss  or 
emancipation  of  any  slave ;  but  all  such  debts,  obligations,  and 
claims  shall  be  held  illegal  and  void. 

5.  The  Congress  shall  have  power  to  enforce  by  appropriate  leg. 
"slation  the  provisions  of  this  article. 


TIIE  CONSTITUTION  OF  THE  UNITED  STATES.  50-3 

Article  XV. 

1.  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  state  on  account 
of  race,  color,  or  previous  condition  of  servitude. 

2.  The  Congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation. 


INDEX. 


ABSOLUTE    GOVERNMENT,  what,  6. 

ADMIRALTY,  extent  of  as  to  place,  275,  276  :  nature  and  extent  of. 
513  :  is  exclusive  in  U.    S.  courts,  513. 

ADOPTION    OF    CONSTITUTION,  history  of,  33-58. 

AGE,  qualifications  of,  137. 

AGENTS,  GOVERNMENTAL,  have  no  powers  but  those  held  by 
their  principals,  65. 

AMBASSADORS,  cases  affecting,  512,  513. 

AMENDMENT,  power  of,  72-76;  — no  limit  upon,  72,  73;  —  mode 
of  exercising,  74-76:  proposed  fourteenth,  151:  tenth,  6  7,  68:  thir- 
teenth, abolishing  slavery,  76-79;  —  effect  of  on  representation,  12-4, 
125,  134-136;  —  proposed  remedies,  134-136. 

AMENDMENTS  TO  CONSTITUTION,  cannot  be  vetoed  by  Pres- 
ident, 114:  limiting  the  general  government,  144:  the  first  eight  do 
not  apply  to  the  states,  147-149;  —  apply  to  the  three  departments 
alike,  151,   152  ;  —  require  no  legislation  to  make  them  binding,   152; 

—  their  meaning  and  object,  152-164.  (See  Bill  of  Rights,  Limit- 
ations on  U.   S.  Government.) 

AMNESTIES,  general,  (See  Pardons.) 

ANGLO-SAXON,  (See  Saxons.) 

APPOINTMENT  to  office,  power  of,  425-440  ;  —  in  whom  vested,  425, 
426; — exercise  of  depends  upon  prior  legislation,  426  ;  —  objections 
to,  428;  —  objections  answered,  428;  —  nature  and  extent  of,  429, 
430  ;  —  functions  of  Senate  in,  429,  430  ;  —  force  of  the  word  "  advise," 
429,  430  ;  —  whether  includes  power  to  remove,  430-435  ;  —  to  fill  va- 
cancies, 435-437;  —  abuse  of,  437-440.  (See  Removals,  Tenure 
of  Office.) 

APPRAISEMENT  LAWS,  nature  of,  405.  (See  Obligation.  Stay 
Laws.) 

APPROPRIATION,  money  to  be  drawn  upon,  348. 

ARISTOCRACIES,  what  included  in,  6. 

ARMS,  right  to  bear,  144;  —  reasons  for  protecting,  152;  —  abuse  of 
prohibited,  152,  153. 

ARREST,  members  of  Congress  exempt  from,  140.  (See  Military 
Arrests,  Martial  Law.) 

ARTICLES    OF    CONFEDERATION,  42-52 ;— when  adopted,  42; 

—  general  character  of,  43,44;  —  abstract  of,  45-47;  —  not  a  law 
but  a  league,  47  ;  —  leading  ideas  of,  47-51;  —  no  idea  of  a  nation 
or  of  citizenship,  47,  48  ;  —  formative  elements  of  were  states,  48  ;  — 


INDEX  565 

powers  of  were  directed  against  states,  49  ;  —  conferred  no  coercive 
power,  49,  50  ;  —  Congress  the  sole  organ  of,  50  ;  —  limited  powers 
conferred  by,  50,  51  ;  —  steps  to  change,  53,  54. 

ATTAINDER,  (See  Bills  of  Attainder.) 

AUSTIN,  his  division  of  Law,  1  ;  —  definition  of  Public  Law,  2  ;  —  de- 
scription of  sovereignty,  6,  8  ;  —  classification  of  governments,  7  ;  — 
error  in  defining  nation  and  sovereignty,  28. 

BAIL,  not  to  be  excessive,  145. 

BANKRUPT  LAWS,  power  to  enact,  252  -  2G2  ;  —  in  Congress  or 
states,  252,  253  ;  —  when  power  of  states  is  suspended,  253  :  extent 
of,  254-262;  meaning  of,  255-257;  in  England,  255,  256;  what  laws 
Congress  may  enact,  256,  257:  statute  of  1841,  257,  258;  —  cases 
under,  258,  259  :   general  policy  of,   260-262  :  advantages  of,  260-262. 

BANKS,  National,  established  under  power  to  borrow  money,  167  , 
power  to  establish,  169,  200. 

BILL  OF  BIGHTS,  none  at  first  contained  in  the  Constitution,  143  : 
supplied  by  amendments,  143  :  contained  in  state  constitutions,  145  : 
in  the  first  eight  amendments,  upon  whom  restrictive,  145-152;  — not 
upon  the  states,  146;  —  only  upon  the  general  government,  14  7,  148  ; 

—  unfortunate   effects  of  this   rule,  149  ;  —  illustrations  thereof,  150  ; 

—  proposed  remedy,  151  :  need  the  aid  of  no  legislation,  155  :  pro- 
visions, meaning,  nature  and  object  of,  152-164  :  intent  and  force  of, 
164  ;  how  far  affected  by  military  necessity,  164  :  applies  to  the  govern- 
ment of  territories,  311,  312. 

BILLS  OF  ATTAINDER,  prohibited,  319-329  ;  — both  to  Congress 
and  the  states,  319  :  definition  of,  319,  320  :  reasons  for  prohibiting, 
321  :  cases  involving,  321-328  ;  whether  statutes  requiring  test  oaths 
are  bills  of  attainder,  328,  329  :  provisions  of  Missouri  constitution  of 
1865,  328,  329.     (See  Test  Oaths.) 

BILLS  OF  CREDIT,  states  forbidden  to  issue,  203,  204  :  definition, 
204. 

BLACKSTONE,  his  division  of  Law,  1 :  illogical  division  of  rights,  by, 
384. 

BLOUNT,  William,  impeachment,  481. 

BORROWING  MONEY,  power  of  Congress  over,  198-202  ;  — unlim- 
ited, 199  ;  —  methods  of  exercise,  167-169,  199  ;  —  by  indirect  means, 
167-169,  200,  201;  — through  national  banks,  200 ;  — legal  tender 
notes,  validity  of,  201,  202  :  power  of  states  over,  202-205  ;  —  limited 
in  means,  but  not  in  extent,  202  ; — reasons  for  this  limitation,  203, 
204. 

BRITISH  CONSTITUTION,  (See  Constitution  of  Great  Brit 

AIN.) 

BROWNSON,  O.  A.,  theory  of  the  Constitution,  23. 
BURGH,  the  Saxon,  167. 

CALHOUN,  theory  of  the  Constitution,  25. 
CAPACITIES,  distinguished  from  rights,  345,  346. 


d66  index. 

CAPITATION  TAXES,  177. 

CAPTURES,  meaning  of,  288,  280;  power  of  Congress  over,  288-291. 

CASES,  meaning  of,  97  :  arising  under  the  Constitution,  507-510;  —  un- 
der laws  of  U.  S.,  510,  511; — -under  treaties,  511,512:  —  affecting 
ambassadors,  512,  513;  —  of  Admiralty,  513. 

CENTRALIZATION,  idea    of,  involved"  in   the   U.  S.  government,  100 
contrasted  with  local  government,  100;  history  and  source  of,  101,102 
advocates  of,   101  ;    proper   relation  to    local    government,    101,    102 
effect  of  abandoning,  102  ;    idea,  of  in  formation  of  House  of  Represen- 
tatives, L21,  122. 

CHARTERS  of  corporations,  (See  CONTRACTS,  CORPORATIONS.) 

CHASE,  Judge,  impeachment  of,  48G.  487. 

CITIZENS  of  U.  S.  entitled  to  protection  at  home,  149  ;  difficulty  of 
affording  complete  protection  against  state  acts,  150  ;  proposed  14th 
amendment  to  remedy  this  difficulty,  151. 

CITIZENSHIP  of  U.  S.,  no  idea  of  in  Articles  of  Confederation,  48 ; 
status  of,  68,  69;  does  not  include  the  right  of  suffrage,  132,  133  ;  a 
qualification  for  office,  137. 

CIVIL  OFFICERS,  what,  481. 

CIVIL  POLITY  of  U.  S.  government,  fundamental  ideas  of,  101-105. 

COASTING  VESSELS,  regulations  concerning,  237. 

COINING  MONEY,  power  of  Congress  over,  262-264  ;  —  necessity  of, 
263. 

COLONIES,  the  American,  political  condition  of,  34. 

COMMANDER-IN-CHIEF,  powers  of,  470-480;  Congress  has  no  such, 
470,  471  ;  nature  and  extent  of  powers  of  Congress  over  the  military, 
470,471;  nature  of  powers  of  commander  in  peace,  471;  —  in  war, 
472,4  73;  distinction  between  power  to  execute  laws  and  powers  of 
commander,  471,  472  :  what  additional  powers  in  war,  473— 180.  (See 
Habeas  Corpus,  Military  Law,  Martial  Law,  Military  Gov- 
ernment, War  Powers.) 

COMMERCE,  what  is,  208;  during  the  confederation,  209,  210  ;  foreign, 
what,  220  ;  among  the  states,  what,  243. 

COMMERCE,  power  over,  205-248  ;  provisions  concerning,  205,  206  ; 
—  these  liberally  construed,  166;  — judicial  construction  of,  170, 
171  :  why  intrusted  to  U.  S.  government,  206:  nature  of,  206-242  : 
whether  exclusive  or  concurrent,  206-208:  limited,  209:  why  vested  in 
Congress,  209-211  :  what  possessed  by  the  states,  211-219,  231,  234  : 
extent  of  possessed  by  Congress,  215-220,  242-248;  extends  to  means 
and  instruments,  245; — to  subject-matter.  217;  —  to  places  where 
carried  on,  244  ;  to  liabilities  of  parties  engaged  in,  247. 

COMMON  DEFENCE,  meaning  of,  174-176. 

COMPENSATION,  of  members  of  Congress,  140;  private  property  not 
to  be  taken  without,  144,  160;  for  private  property  taken  for  public 
use,  161  ;  whether  U.  S.  may  ever  take  private,  property  without,  161, 
162. 

CONFEDERATION,  history  of  period  prior  to,  33-40:  political  condi- 
tion of  period  prior  to,  34  ;  period  of,  40 ;  sentiment  of  nationality  dur- 


INDEX.  567 

Ing,  41,  42  ;  prostration  under,  51,  52,  206  ;  commerce  under,  209,  210 
territories  under,  306,  307.     (See  Articles  of  Confederation.) 

CONFISCATION,  as  a  war  measure,  290,  291. 

CONGRESS,  tendency  of  to  enlarge  iis  powers,  118,  119;  division  of 
into  two  houses,  120;  President  redly  a  third  branch,  120;  benefits  of 
tliis  form,  121  ;  ideas  underlying  the  organization,  121  ;  ideas  borrowed 
from  England,  12]  :  power  over  election  of  members,  131;  —  over 
qualification  of  electors,  131  :  time  of  meeting  of,  137,  138;  sessions  of, 
138;  quorum  of,  138;  qualifications  of  members  of  each  house,  138, 
139;  power  of  each  house  of,  over  its  own  members,  139;  journal  of 
each  house  of,  139  ;  yeas  and  nays  in,  139  :  members  of  exempt  from 
arrest,  140;  —  compensation  of,  140;  —  membei-s  disqualified  from 
holding  certain  offices,  140,  141  .  President  independent  of,  417.  (See 
Departments,  Legislative  Powers,  War  Powers.) 

CONGRESS,  CONTINENTAL,  first,  35  ;  second,  35,  36  ;  — resolution 
ol  recommending  states  to  adopt  constitutions,  37;  —  resolution  of 
recommending  a  general  convention,  54. 

CONSCRIPTION,  300-304.      (See  War  Powers.) 

CONSTITUTION,  of  a  nation,  possibility  of,  6  :  possible  only  in  limited 
monarchies,  aristocracies,  and  representative  republics,  7. 

CONSTITUTION  of  Great  Britain,  contrasted  with  American,  109  ; 
danger  of  arguing,  from,  to  American,  109;  division  of  functions  by, 
167-173  ;  how  far  the  U.  S.  Executive  copied  after  the  British,  176  ; 
rules  as  to  revenue  bills,  140. 

CONSTITUTION  OF  THE  U.  S.,  peculiarities  of,  11, 12  ;  method  of  study 
of,  10,  13-16  :  study  of,  importance  to  the  lawyer,  17  ;  —  to  the  citizen, 
17,  18:  construction  of,  the  lawyer-like  method,  13-15;  —  the  states- 
man-like method,  15,  16  :  importance  of  true  theory  of,  20,  21  :  theories 
variously  advocated,  21-26  :  complete  national  theory  of,  21-23;  com- 
plete state  sovereignty  theory  of,  24,  25  ;  partial  national  theory  of,  25, 
26  :  is  the  organic  law  of  a  nation,  30,  32  :  history  of  adoption  of,  33-58  ; 
submission  of  lor  adoption,  55-57;  ratification  of,  58:  effect  of  tenth 
amendment,  to,  67,  68  :  is  a  law,  80  ;  requires  a  sanction,  80-82  ;  cases 
arising  under,  507-510.  (See  Amendment,  Construction,  Sov- 
ereignty.) 

CONSTRUCTION  of  the  Constitution,  the  lawyer-like  method,  13-15; 
the  statesman-like  method,  15,  16  ;  by  whom  to  be  authoritatively  made, 
80-98  ;  where  power  of  resides,  82  ;  —  resides  in  the  general  govern- 
ment, 82-87  ;  —  resides  finally  in  the  people,  83  ;  —  proximately  in  the 
general  government,  83,  84  ;  —  general  acquiescence  in  this  doctrine, 
84;  —  exceptions  to  this  general  acquiescence,  84-86  ;  resides  in  the 
Supreme  Court,  8  7-98  :  two  schools  of,  166  ;  liberal  school  of,  followed, 
166;  —  illustrations,  160-168:  when  words  are  to  receive  a  technical 
meaning,  256,  257, 

CONTRACTS,  what  are,  350-382.  executory,  350,  351  :  executed,  351- 
354  :  grants  made  by  states  are,  352,  354  :  appointments  to  office  are 
not,  354-357  :  licenses  are  not,  357-362  :  how  far  charters  of  private 
corporations  are,  363-381  ;  —  the  grants  of  franchises  are,  364,  365  ;  — 


568  INDEX. 

cases  illustrating,  365  -369  ;  —  the  collateral  stipulations  in  charter? 
are,  369,  370;  —  cases  illustrating,  369-380:  not  implied  in  charters 
380,  381  :  charters  of  municipal  corporations  are  not,  381,  382.  (See 
Obligation.) 

CONTROVERSIES,  meaning  of,  97:   where  the   U.  S.  is  a  party,  514 
between  states,  514. 

CONVENTION  at  Annapolis  of  1786,  54;  its  resolution  calling  a  gen 
eral  convention,  54. 

CONVENTION,  the  Constitutional  of  1787,  54-57;  were  volunteers. 
55  ;  —  nature  of  their  acts,  56,  57. 

CORPORATIONS,  power  of  Congress  to    create,  167;  delegation  of 
right  of  eminent  domain   to,   161  :  power  of  states  to  tax  those  cre- 
ated   by  Congress,   189-191,   192; — to    tax   stockholders,   193,   194: 
charters  of  private,  how  far  contracts    (See  Contracts):  charters  of 
municipal,  (See  Contracts.) 

COUNTERFEITING,  power  over,  268-271; — how  far  concurrent  in 
the  states,  270,  271  :   what  is,  269. 

COURTS  of  the  U.  S.,  (See  Judicial  Powers,  Judiciary,  Juris- 
diction.) 

CREDITOR,  how  affected  by  insolvent  discharge  in  another  state,  393- 
395. 

CRIMES,  power  of  Congress  over,  267-281  ;  —  provisions  in  respect 
to,  267,268;  —  express,  268-279;  —  implied,  279-281;  —  necessary 
to  the  general  government,  279  ;  —  not  left  to  the  states,  280 ;  — exer- 
cise of  illustrated,  280,  281  ;  —  extent  of  as  to  place,  275. 

CRIMINAL    PROSECUTION,  a  constitutional  sanction,  81. 

CRIMINAL  TRIAL,  how  to  be  conducted,  144,  154;  what  accused 
may  enjoy,  144,  154  :  whether  these  rules  are  expedient,  154,  155. 

DEBT,  (See  Imprisonment  for  Debt.) 

DECLARATION  OF  INDEPENDENCE,  nature  of,  by  whom  made, 
etc.,  36-38., 

DECLARATION    OF    SUPREMACY,  in  the  Constitution,  66,  67. 

DEPARTMENTS,  division  of  government  into  three,  107-119;  division 
historical  and  theoretical,  108  ;  —  extent  of  in  Great  Britain,  108  ;  — 
in  other  countries,  108,  109; — advantage  of,  109,  110;  extent  of 
division  in  U.  S.  111-116  ;  dependence  and  intermingling  of,  111— 
115;  —  President's  legislative  power,  111  —  115;  tendency  of  one  to 
encroach  upon  another,  116-119  ; —  this  tendency  strongest  in  legisla- 
ture, 116-119. 

DIGEST,  the,  division  of  law  in,  1. 

DIRECT    TAXES,  how  apportioned,  177  ;  what  are,  178,  179. 

DISLOYALTY,    members  of  Senate  and  House  expelled  for,  138,  139. 

DISTRICT  OF  COLUMBIA,  power  of  Congress  over,  310  ;  legisla- 
tion for  restrained  by  the  Bill  of  Rights,  311-313. 

DOMICIL,  effect  of  upon  insolvent  discharges,  393-395. 

DUE   PROCESS    OF    LAW,  when    required,  144 :   what    is,   156-160 
—  a  regular  statute  not  necessarily,  156  ;  equivalent  to  law  of  the  land. 


INDEX.  569 

156;  —  when  consists  of  regular  judicial    proceedings,   157; — when 
of  summary  measures,  157;  —  cases  illustrating.  158,  159  :  difficulty  of 
applying  the  provision,  160  ;  how  affected  by  military  necessity,  161— 
164. 
DUTIES,  power  of  Congress  to  lay,  173, 176, 178,  167,  187.  (bee  Taxes.) 

ELECTION,  of  President,  126-129;  of  senators,  130  ;  of  representatives, 
131  ;  —  power  of  Congress  over,  131. 

ELECTORS  OF  PRESIDENT,  how  appointed,  126,  127;  theoreti- 
cally are  free  to  make  a  choice,  127,  128  ;  —  practically  have  no  free 
choice,  128,  129  :   reasons  for  this  change,  129,  130. 

ELECTORS  OF  REPRESENTATIVES,  qualifications  of,  131  ;  — 
not  controlled  by  Congress,  131-133  ;  —  controlled  by  the  states,  132  ; 

—  single   case   in   which    Congress    may   interfere,  133  ;  —  should   be 
under  control  of  Congress,  134-136. 

EMINENT  DOMAIN,  what  is,  and  reasons  for,  160,  161  ;  exercise  of 
delegated  to  corporations,  161  ;  whether  exercise  of  affected  by  mili- 
tary necessity,  161-163:  exercise  of  does  not  impair  obligation  of 
contracts,  392. 

ENGLISH    BANKRUPT    LAWS,  255,  256. 

EXCISES,  meaning  of,  176.     (See  Taxes.) 

EXECUTION,  laws  exempting  from,  how  affect  obligation  of  contracts, 
409-413  ; —  when  they  impair  the  obligation,  409,  410,  412  ;  — judi- 
cial discussion  concerning,  410,  411  ;  — held  valid  by  state  courts,  411  ; 

—  doctrine  of  U.  S.  Supreme  Court,  411,  412.      (See  Obligation.) 
EXECUTIVE    POWERS,    71;   in  whom  vested,  110  :    of  the  Senate, 

115  :  how  far  copied  from  British  constitution,  112  :  constitutional 
provisions,  414,  415  :  division  of,  416:  vested  in  President,  416  :  and 
in  subordinates  who  represent  the  President,  416,  417:  power  of  Con- 
gress over,  417,  418:  how  far  courts  may  interfere  with,  418,  419; 
basis  upon  which  their  exei-cise  is  rested,  419,  420  :  three  classes  of, 
420-422 ;  those  exclusively  under  control  of  President,  420,  421  ; 
those  requiring  a  prior  statute  as  the  occasion,  421,  422  ;  those  entirely 
depending  upon  prior  statutes,  422 ;  method  of  exercising  these  classes, 
422,  423  :  power  of  appointment,  425—440 :  power  to  execute  the 
laws,  445-455  ;  —  executing  laws,  degrees  of  discretion  in.  440, 
441;  —  may  President  judge  as  to  validity  of  a  law,  441-445  ;  — 
effect  of  his  oath  of  office,  443  ;  —  when  he  may  disregard  a  law,  444, 
445  :  power  over  foreign  relations,  445-455  :  power  to  grant  pardons, 
455—466  :  power  to  recommend  measures,  466—469  :  powers  of  com- 
mander-in-chief, 470-480  :  impeachment,  480-494.  (See  PRESIDENT, 
Departments,  Habeas  Corpus,  Martial  Law,  War  Powers, 
and  other  heads.) 
EXEMPTION,  from  execution,  (See  Execution.) 
EXPORTS,  not  to  be  taxed,  180;  —  not  by  the  states,  196. 
EX  POST  FACTO  LAWS,  329-349  ;  what  are,  329-330  ;  are  crim- 
inal laws,  330  ;  and  retroactive,  330;  cast's  involving,  331-347;  de- 
fined by  Judge    Chase.  331,    332;  three   classes  of,  332  ;  distinguished 


570  INDEX. 

from  retrospective  laws,  332  ;  when  laws  changing  the  punishment 
are,  338-340  :  how  far  laws  imposing  a  test  oath  are,  340  -  348.  (Set 
Test  Oaths.) 

FALCK,  description  of  public  law,  2  :   on  the  judiciary,  107. 

FELONIES,  on  the  high  seas,  power  of  Congress  over,  274. 

FINES,  excessive,  forbidden,  145. 

FLORIDA,  acquisition  of,  307  ;  government  of  while  a  territory,  314. 

FORCES,  land  and  naval,  Bill  of  Rights  does  not  apply  to,  145.  (See 
Military  Law.) 

FOREIGN  RELATIONS,  the  power  to  regulate,  445-455  ;  —  by  nego- 
tiation, 445-448  ;  —  importance  of  this  function,  44G,  447  ;  —  belongs 
to  President,  44C  ;  —  Congress  has  no  direct  control  over,  447  ;  —  leg- 
islative powers  indirectly  derived  from,  453,  454  ;  —  even  to  control 
the  states,  453,  454  :  —  by  treaties,  (See  Treaties.) 

GERMAN    TRIBES,  germs  of  local  government  among,  103. 

GENERAL    WELFARE,  meaning  of,  174-170. 

GOVERNMENT,  absolute,  what,  6  :  limited,  what,  6  :  classes  of,  7  : 
distinguished  from  nation,  28,  59-63  ;  — illustrations  from  French  his- 
tory, 60  ;  —  from  English  do.,  60,  61  :  gradations  of  powers  of,  61,  62  : 
of  Great  Britain,  powers  of,  61,  62:  powers  of  may  be  less  than  ab- 
solute sovereignty  of  the  people,  62  :  can  exercise  no  powers  beyond 
those  held  by  its  authors,  65. 

GOVERNMENT  OF  THE  UNITED  STATES,  form  of  fixed,  9 : 
maj  authoritatively  interpret  the  Constitution,  82-87  :  leading  ideas  of, 
99-105:  of  limited  powers,  165-172:  express  limitations  on,  142-165  : 
implied  do.  165-172:  tripartite  division  of,  (See  Departments).  (See 
Congress,  President,  Legislative  Powers,  Executive  Pow- 
ers, Judicial  Powers.) 

GRAND    JURY,  when  indictment  by  necessary,  144,  154. 

GRANTS  from  states  are  contracts,  352. 

GREAT  BRITAIN,  constitution  of,  (See  Constitution  of  Great 
Britain,  Departments.) 

HABEAS  CORPUS,  suspension  of  writ  of,  473-475  ;— Congress  may 
authorize,  473,474;  —  effects  of  suspension,  474,  475; — gives  no 
greater  power  to  arrest,  475  ;  — gives  only  power  to  detain,  474,  475. 

HAMILTON,  ALEX.,  his  theory  of  the  Constitution,  23  ;  —  of  the  power 
to  interpret  the  Constitution,  84  ;  —  of  the  power  of  Congress  over 
Commerce,  248. 

HAUTEFEUILLE,  opinion  as  to  surrender  of  sovereignty,  39. 

HEFFTER,  opinion  as  to  surrender  of  sovereignty,  39. 

HIGH    SEAS,  meaning  of,  275,  276. 

HISTORY,  of  adoption  of  the  Constitution,  33-58;  of  period  prior  to 
the  Confederation,  33—40  ;  of  Confederation,  40-52  ;  of  proceedings 
immediate  upon  adoption  of  the  Constitution,  53-58. 

HOUSE    OF   REPRESENTATIVES,  based  on  idea  of  centralization 


INDEA.  571 

122:  Low  constituted,  131-136:  power  of,  over  its  own  members,  and 
government,  138,  139:  quorum  of,  138:  general  rules  for  government 
of,  139:  revenue  bills  to  originate  in,  139.  (See  Congress,  Elect- 
ors of  Representatives,  Representation,  Representatives.) 

HUMPHRIES,  Judge,  impeachment  of,  487. 

HUNDREDS,  the  Saxon,  what,  104. 

HURD,  John  C,  his  theory  of  the  Constitution,  23. 

IMPAIR,  meaning  of,  349. 

IMPEACHMENT,  a  sanction  applied  to  official  persons,  81,  96,  97  ; 
trial  by  Senate,  a  judicial  act,  115:  general  nature  of,  480-494  :  pro- 
visions of  Constitution,  480  :  who  may  be  impeached,  481,  482  ;  — 
what  are  civil  officers,  481  ;  —  senators  and  representatives  not,  481  ; 
—  case  of  Senator  Blount,  481;  —  this  case  questioned,  481,  482: 
lawful  grounds  of  an  impeachment,  482-493  :  first  theory,  for  indicta- 
ble offences  only,  482  ;  —  reasons  for  this  theory,  482,  483  ;  —  the 
English  practice,  482,  483  ;  —  high  crimes  and  misdemeanors  technical 
words,  483  :  second  theory,  for  official  misconduct,  483,  484  ;  —  illus- 
trations, 484  :  these  theories  examined,  the  second  correct,  485-493  ;  — 
possible  abuse  no  objection,  485;  —  practical  construction  given  by 
the  House  and  the  Senate,  485-487  ;  —  impeachment  of  Judge  Pick- 
ering, 486  ;  — of  Judge  Chase,  486,  487  ;  —  of  Judge  Peck,  487  ;  —  of 
Judge  Humphries,  487; — these  cases  examined,  487,  488:  second 
theory  in  harmony  with  the  Constitution,  488-492 :  first  theory  is  based 
upon  English  law,  488,  489  ;  —  fallacy  of  this  method,  489 ;  —  when 
words  of  the  Constitution  are  to  receive  a  technical  meaning,  489  : 
impeachment  a  sanction  to  restrain  violations  of  official  duty,  489, 
490  :  meaning  of  high  crimes  and  misdemeanors,  490,  491  ;  —  crimes 
not  a  technical  word,  491  :  consequences  of  adopting  the  first  theory, 
491,  492  :  debates  on  impeachment  in  the  Convention,  492,  493  : 
Luther  Martin's   opinion,  493  :  Madison's   opinion,  493  :  punishments, 

493  :  President  and  judges  may  not  be  suspended  during  pendency  of, 

494  :  other  officers  may,  494. 

LMPLIED    LIMITATIONS  on  U.  S.  government,  165-172. 

IMPORTERS,  states  cannot  forbid  to  sell,  221. 

IMPORTS,  and  exports  not  to  be  taxed  by  states,  196  :  when  goods 
cease  to  be,  197  ;  included  in  "  foreign  commerce,"  221. 

IMPOSTS,  what,  176. 

DIPRISONMENT  FOR  DEBT,  abolition  of,  does  not  impair  obliga- 
tion of  contracts,  404. 

INDEPENDENCE,  declaration  of,  nature  of,  etc.,  36-38. 

INDIRECT  TAXES,  what  are,  178,  179:  to  be  uniform,  178;—  uni- 
formity in  what,  183. 

INHABITANCY,  a  qualification  for  office,  137. 

lNSOLVENT  DISCHARGE,  as  affecting  obligation  of  contracts,  392- 
395 ;  effect  on  creditor  in  another  state,  393-395. 

INSOLVENT   LAWS,  (See  Bankrupt  Laws.) 

INSPECTION    LAWS,  what,  196,  197. 


572  INDEX. 

INTERPRETATION  of  the  Constitution,  when  words  are  to  receive  a 
technical  meaning,  256,  257,  489.     (See  Constkuction.) 

JACKSON,  theory  of  the  Constitution.  26  :  opinion  on  interpretation  of 
the  Constitution,  84,  88. 

JAMESON,  theory  of  sovereignty,  G. 

JAY,  theory  of  the  Constitution,  23  :  opinion  on  interpretation,  84. 

JEFFERSON,  theory  of  the  Constitution,  25  :  opinion  on  interpreta- 
tion, 88:  opposed  to  centralization,  101. 

JUDICIAL  TOWERS,  a  mark  of  nationality,  71,  72:  of  U.  S.,  495- 
518  :  provisions  of  the  Constitution,  495  :  nature  of  jurisdiction,  496- 
501;  nature  and  extent  of  jurisdiction  of  U.  S.  courts,  501-506:  the 
necessary  jurisdiction,  reasons  for,  501-504  ;  the  supplementary  juris- 
diction, reasons  for,  505,  50G  :  the  necessary,  what  included  in,  5u6- 
514  ;  —  constitutional  provisions,  506  ;  —  oases  arising  under  the  Con- 
stitution, 507—510  ;  necessity  of  this,  507  ;  —  classes  of  such  cases,  508; 
illustrations,  508,  509; — this  jurisdiction  supreme,  509;  —  how  far 
exclusive,  509 ;  — how  far  concurrent,  509  ;  —  legislation  thereon,  510  : 
cases  arising  under  laws  of  the  U.  S.,  510,  511  ;  —  reasons  for,  510  ;  — 
supreme,  510;  —  how  far  exclusive,  511;  —  legislation,  511:  cases 
arising  under  treaties,  511,  512  ;  — supreme,  511  ; —  how  far  exclusive, 
512  :  cases  affecting  ambassadors,  512,  513;  —  reasons,  512  ;  —  supreme 
and  how  far  exclusive,  512  ;  —  legislation,  513  :  controversies  to  which 
the  U.  S.  is  a  party,  514  :  controversies  between  states,  514  :  jurisdic- 
tional fact  in  all  these  cases,  514,  515  :  supplementary  jurisdiction,  what 
included  in,  515,  516; — provisions,  515;  —  reasons  for,  515;  —  not 
supreme  nor  conclusive,  515,516:  no  common  law  jurisdiction,  516: 
original  jurisdiction  of  the  Supreme  Court,  517:  appellate  do.  517: 
power  of  Congress  over  both,  517  :  jurisdiction  of  interior  courts,  517, 
518;  —  power  of  Congress  over,  517,  518;  —  must  be  based  upon 
Constitution  and  statutes,  517,  518. 

JUDICIAL  PROCEEDINGS,  how  far  required  by  due  process  of  law, 
156-158  :  stamps  on  papers  used  in,  184,  185  ;  —  are  a  tax  on  prop- 
erty, 185  :  as  a  part  of  the  remedy,  397-401. 

JUDICIARY,  general  powers  of,  89  :  function  to  construe  statutes,  91, 
92  ;  — to  interpret  the  Constitution,  91,  92  ; —  objections  to  latter  con- 
sidered, 94,  95  ;  independence  of,  107-109  :  legislative  powers  of,  106  : 
of  U.  S.,  constitutional  provisions,  495.    (See  Judicial  Powers.) 

JURISDICTION,  over  constitutional  questions,  how  acquired,  97,  98  : 
of  the  national  and  state  courts,  when  final,  149  :  in  general,  496  - 
501  :  definition,  496  :  contentious  and  ex  parte,  496  :  kinds,  classes,  and 
degrees  of,  496-500  ;  —  civil  and  criminal,  496  ;  —  common  law,  equity, 
etc.,  496,  497  ;  —  original  and  appellate,  497  ;  —  exclusive  and  con- 
current, 497,  498;  —  general  and  limited,  498-500  :  general  what,  498, 
499; — limited,  what  and  how,  499;  —  as  to  subject-matter,  499, 
500  ;  —  as  to   parties,  500 :  sources,  common   law  and   statute,  501 

JURISDICTION  of  U.  S.  courts.     (See  Judicial  Powers.) 

JURY,  trial  by  secured,  145,  154  :  grand,  presentment,  etc.  by,  whet 
necessary,  145,  154. 


INDEX.  573 

KENTUCKY,  resolutions  of  1798-9,  85. 

LANDS,  public,  proprietorship  of,  69,  70,  305-309. 

LAAV    OF   NATIONS,  offences  against,  271,  272. 

LAW   OF   THE    LAND,  (See  Due   Process   of   Law.) 

LAWS  of  U.  S.,  eases  arising  under,  510,  511. 

LEGAL    RIGHTS,  not  to  be  impaired,  346. 

LEGAL    TENDER    ACT,  validity  of,  171,  201,  202. 

LEGISLATIVE  POWERS,  a  mark  of  nationality,  70,  71  :  in  whom 
vested,  110  :  of  the  President,  111-115  :  of  British  Crown,  112,  113  : 
of  the  President  greater  than  those  of  the  British  Crown,  113  ;  — his 
discretion  unlimited,  113;  —  in  making  treaties,  115:  of  Congress, 
173-413;  —  express  prohibitions  on  exercise  of,  318-413  ;  —  on  exer- 
cise of  by  Congress  and  states,  319-349  ;  — by  states  alone,  349—413 
power  of  Congress  to  tax,   173-198;  —  to  borrow  money,   198—205 

—  to  regulate   commerce,    205-248  ;  —  over  naturalization,   248-252 

—  over  bankruptcies,  252-262;  —  to  coin  money,  etc.,  262-264;  — 
over  the  postal  service,  264-266  ;  —  over  patent  rights,  etc.,  266,  267; 

—  over  crimes,  267-281;* — military  and  war,  281-304  ;  —  over  ter- 
ritories, 304-318;  —  derived  from  control  of  foreign  relations,  453, 
454  ;  —  over  pardons,  465.  (See  War  Poavers,  Congress,  Pres- 
ident, and  other  special  heads.) 

LICENSES,  granted  by  U.  S.,  how  far  controlled  by  states,  195  ;  rights 
of  states  to  grant,  197  ;  of  states,  police  measures,  212;  to  coasting  ves- 
sels, 218  :  of  states,  whether  contracts,  357-362  ;  —  not  contracts,  358, 
359. 

LIEBER,  works  on  government,  107  ;   on  dual  legislatures,  120. 

LIFE  and  limb,  not  to  be  twice  jeoparded,  144,  155,  156. 

LIFE,  liberty,  and  property,  secured,  144,  156. 

LIMITATIONS  on  powers  of  Congress,  319-349.  (See  Bills  of  Attain- 
der, Ex  Post  Facto  Laws.) 

LIMITATIONS  on  power  of  states  to  tax,  implied,  188-195  :  express, 
195-198. 

LIMITATIONS  on  U.  S.  government,  142-172 :  express,  142-165;  — 
classes  of,  143;  —  apply  to  all  departments,  143;  —  contained  in  first 
eight  amendments,  143,  144  ;  —  how  far  apply  to  states,  145-148  ;  — 
should  apply  to  states,  149  ;  —  evils  of  the  rule  illustrated,  150;  —  pro- 
posed 14th  amendment  as  a  remedy,  151  ;  —  nature  and  object  of  these 
limitations,  152-165:  implied,  165-172;  —  two  schools  of  interpreta- 
tion, 165,  166;  —  liberal  interpretation  of,  illustrated,  166-171;  — 
principles  of  interpretation  settled,  171,  172. 

LIMITATIONS,  statute  of,  how  far  affects  obligation  of  contracts,  403, 
404. 

LIMITED  government,  what,  6. 

LOCAL  improvements,  power  of  Congress  over,  187. 

LOCAL  SELF-GOVERNMENT,  history  and  nature  of  101,  102  :  relation 
of  to  centralization,  101,  102  :  effect  of  abolishing,  102  ■  principle  of,  how 
applied  in  America,  102  :  not  to  be  surrendered,  103  :  germs  of  among 


574  INDEX. 

German    tribes,   103;  —  among  the  Saxons,   105:  necessity  of,  105 
idea  of  embodied  in  the  Senate,  121,  122. 
LOUISIANA,  acquisition  of,  307;  as  a  territory,  315-318. 

MADISON,  theory  of  the  Constitution,  26  :  on  interpretation,  84  :  on 
impeachment,  493. 

MAGNA  CHARTA,  a  provision  of,  156. 

MARQUE  and  reprisal,  letters  of,  288. 

MARSH,  Geo.  P.,  theory  of  the  Constitution,  23. 

MARSHALL,  theory  of  the  Constitution,  23  ;  on  interpretation,  84. 

MARTENS,  on  surrender  of  sovereignty,  39. 

MARTIAL  LAW,  whether  it  may  be  resorted  to,  475-480  :  Congress 
may  not  authorize,  47G  :  whether  President  may  as  commander-in 
chief,  4  76-480  :  defined,  477  :  is  not  part  of  legislative,  judicial,  or 
civil  executive  machinery,  476  :  decision  of  Supreme  Court  that  it  may 
not  be  resorted  to,  478:  opinion  of  Ld.  C.  J.  Cockburn,  478  :  when  may 
be  used  as  a  part  of  waging  war,  479,  480. 

MARTIN,  Luther,  letter  to  Maryland  legislature,  428  :  on  impeachment, 
493. 

McILVAINE,  Prof.  J.  H.,  Articles  of  Confederation  described  by,  43, 
44,  51,  52. 

MEANS,  used  by  U.  S.,  not  taxable  by  the  states,  194. 

MEMBERS  of  Congress,  (See  Congress,  House  of  Representatives, 
Electors  of  Representatives,  Representation,  Represent- 
atives.) 

MILITARY  ARRESTS,  164,  165,  475-480.      (See  Martial  Law.) 

MILITARY  AUTHORITIES,  powers  of,  162-164. 

MILITARY  GOVERNMENT,  defined,  477;  power  of  President  to  es- 
tablish, 4  77. 

MILITARY  LAW,  cases  under  excepted  from  Bill  of  Rights,  144,  155 : 
under  power  of  Congress  to  govern  the  forces,  296  :  defined,  477.  (See 
War  Powers.) 

MILITARY  POWERS.     (See  War  Powers.) 

MILITIA,  when  in  active  service  excepted  from  bill  of  rights,  144,  155  : 
power  of  Congress  over,  297-300  :  what  are,  297,  298.  (See  War 
Powers.) 

MILL,  John  Stuart,  on  taxes  on  judicial  proceedings,  185. 

MISSOURI,  test  oath  provisions  in  constitution  of,  321,  322,  340-349. 

MONEY,  not  to  be  drawn  from  treasury  without  appropriation,  348. 

MUNICIPAL  corporations,  (See  Corporations.) 

NATION,  maaning  of,  27-30  ;  distinguished  from  government,  28,  59-63  ; 

illustrated  by  French  history,  60  ;  —  by  English  do.,  60,  61  :  no  idea  of 

in  Articles  of  Confederation. 
NATIONAL  BANKS,  power  to  create,  167,  169,  200. 
NATIONAL  THEORY  of  the  Constitution,  21-23. 
NATIONALITY  of  the  U.  S.,  when  began,  33-40  :  feeling  of,  a  growth, 

41  ;  —  not  perfectly  defined  during  the  Confederation,  41,  42  :  indicated 

in  the  Constitution,  63-79  ;  —  by  the  preamble,  63,  64  ;  —  by  the  dec* 


INDEX.  570 

laration  of  supremacy,  66,  67;  —  by  the  10th  amendment,  67,  68;  — 
by  the  status  of  citizenship,  68,  69  ;  —  by  the  proprietorship  of  public 
lands,  69,  70;  —  by  the  legislative  powers,  70,  71  ;  —  by  the  executive 
powers,  71;  —  by  the  judicial  powers,  71,  72;  —  by  the  power  of 
amendment,  72-79. 

NATURALIZATION,  power  of  Congress  over,  248-252  :  what  is,  249  : 
the  power  exclusive  in  Congress,  2.30,  251. 

NAVIGABLE  streams,  what,  240,  241  :  bridges  over,  240,  211. 

NAVIGATION  laws,  245. 

NEGOTIATIONS,  foreign,  (See  Foreign  Relations.) 

NEW  HAMPSHIRE,  first  constitution  of,  37. 

NEW  JERSEY,  first  constitution  of,  37. 

NOBILITY,  no  title  of,  to  be  granted,  349. 

OATH  of  office,  of  President,  effect  of,  443. 

OBLIGATION  of  contracts,  not  to  be  impaired,  349-413  :  what  is,  382- 

386  ;  — in  the  Roman  law,  383  ;  —  is  the  bond  of  the  law,  383,  384  ; 
is  created  by  the  law,  384,  385  ;  —  leading  case  on,  385,  386  ;  —  illus- 
trated, 386  ;  —  same  in  contracts  with  states  and  with  private  persons, 

387  ;  —  remedy  included  in,  387  :  what  state  laws  impair,  389-413  ;  — 
meaning  of  impair,  389  ;  —  general  rule,  389,  390  ;  —  when  laws  apply 
to  the  terms  of  a  contract,  390-395  ;  —  between  private  parties,  390, 
391  ;  —  when  state  is  a  party,  391,  392;  —  state  insolvent  laws,  392- 
395; — when  passed  subsequent  to  the  contract,  392,  393;  —  when 
passed  prior,  393;  —  laws  applying  to  the  remedy,  395-413;  —  effect 
of  such  laws  discussed,  395-403;  —  laws  taking  away  remedies,  403  ; 
—  statutes  of  limitation,  403,  404  ;  —  laws  abolishing  inrprisonment  for 
debt,  404  ;  —  stay  and  appraisement  laws,  405-409  ;  —  exemptions  from 
execution,  409-413.      (See  Remedial  Right.) 

OFFICE,  terms  of,  137  :  appointments  to  not  contracts,  354-357  :  power 
of  appointment  to  (See  Appointment)  ;  removal  from,  (See  Remov- 
als.) 

OFFICERS,  of  Congress,  how  appointed,  136  :  of  U.  S.,  liability  of  for 
acts  under  void  laws,  162,  163  :  inferior,  who  are,  426. 

OFFICIAL  persons,  sanctions  applicable  to,  96  :  how  punished  for  crimes, 
97,  (See  Crimes)  :  methods  of  cnoosing,  125-136  ;  qualifications  of, 
137. 

ORTOLAN,  on  surrender  of  sovereignty,  39  :  definition  of  piracy,  272- 
274. 

PAPER  currency,  power  to  issue,  16". 

PARDONS,  power  to  grant,  455-466  :  definition,  455,  456  :  granted  by 
King  or  Parliament,  456  :  extent  of  President's  power,  457-465  ;  —  may 
grant  any  known  in  the  English  law,  457-459,  461  ;  —  after  conviction, 
460;  —  conditional  pardons,  460  ; — before  trial,  460,  461;  —  general 
amnesties,  462-464  ;  —  defined,  462  ;  —  effect  of,  463  ;  —  objections  to 
considered,  464  :  power  of  Congress  over,  465  ;  —  cannot  limit  that  of 
President.  465  ;  — has  it  any  independent  power,  465. 

PATENT  and  copy  rights,  power  of  Congress  over,  266,  267. 


576  INDEX. 

PECK,  Judge,  impeachment  of,  487. 

PEOPLE,  possess  political  sovereignty,  5. 

PETITION,  right  to  assemble  and,  144. 

PICKERING,  Judge,  impeachment  of,  486. 

PINHEIRO  FERREIRA,  on  surrender  of  sovereignty,  40. 

PIRACIES,  what  are,  272  :  power  of  Congress  over,  271-276  ;  —  nature 
of,  271,  272     —  extends  to  defining,  274. 

POLICE  regulations,  power  of  states  to  impose,  211-226.  (Sec  Com- 
merce.) 

POLITICAL  condition  of  the  colonies,  34. 

POLITICAL  LAW,  embraces  what,  6,  7  :  divisions  of,  8  :  general,  not 
treated  of,  9. 

POLITICAL  SOVEREIGNTY,  what,  4,  5,  27-30 :  power  of  a  nation 
to  resign,  39. 

POSTAL  SERVICE,  power  of  Congress  over,  264-266  ;  what  included 
in,  265  ;  extent  of  power  over.  265,  266. 

POST-ROADS,  what,  265,  266 

POWER  of  amendment,  72-76. 

POWERS  of  IT.  S.  government.  (See  Legislative,  Executive, 
Judicial,  Limitations,  and  other  special  heads.) 

PREAMBLE,  of  the  Constitution,  effect  of,  63,  64  :  of  Confederate  Con- 
stitution, 65. 

PRESENTS  from  foreign  governments,  349. 

PRESIDENT,  his  power  to  interpret  the  Constitution,  89,  90,  441-444  : 
method  of  choosing,  126,  127  ;  —  change  from  the  original  theory,  128  ; 

—  why,  128,  129;  —  change  beneficial,  129:  qualifications  of,  137: 
term  of  office  of,  137  :  legislative  powers  of,  111-115:  war  powers  of, 
285-288,  470-480:  executive  powers  vested  in,  414-416:  general 
nature  of  powers  of,  416-424:  acts  through  subordinates,  416,  417: 
an  independent  department,  417:  powers  of  mainly  political,  418: 
acts  of  how  questioned  by  courts,  418,  419  :  how  tar  independent  of 
Congress,  418,  424  :  functions  of  exclusively  under  his  control,  420, 
421  :  functions  of  partly  dependent  upon  statutes,  421,  422  :  functions 
of  entirely  dependent  upon  statutes,  422  :  discretion  of,  422,  423  : 
his  power    to   appoint    officers,  425-440  ;  —  to  execute    laws,  440-445  ; 

—  over  foreign  relations,  445-455  ;  —  to  grant  pardons,  455-466  ;  — 
to  recommend  measures,  466-469;  —  as  commander-in-chief,  470-480: 
impeachment  of,  480-494;  discretion  of  in  executing  laws,  440,  441  : 
may  not  judge,  of  the  validity  of  laws,  441-445:  effect  of  his  oath  of 
office,  443  :  when  may  disregard  a  law,  444,  445.  (See  Executive 
and  other  special  heads.) 

PRESS,  freedom  of  protected,  114. 

PRIVATE    CORPORATIONS,  (See  Corporations.) 

PRIVATE  LAW,  divisions  of,  1  :  what  embraces,  3  :  its  relations  to  the 

state,  4. 
PRIVATE    PROPERTY,  how  taken  for  public   use,  144  :  right  of  em 

inent  domain  over,  161-163. 
°ROCESS  of  law,  (See  Due  Process.) 


INDEX.  577 

PROFESSIONAL  status  rights  and  capacities  of,  345-347 

PROHIBITIONS,  (See  Limitations.) 

PROPRIETORSHIP  over  territories,  308,  309. 

PROTECTIVE  tariff,  power  to  impose,  187. 

PROVIDING  a  navy,  what,  293. 

PUBLIC    LANDS,  69,  70,  308,  309. 

PUBLIC  LAW,  what  embraces,  2,  3  :  relations  to  the  state,  4  :  division! 

Of,  4. 
PUNISHMENTS,  cruel  and  unusual  forbidden,  145. 

QUALIFICATIONS,  of  electors  of  representatives  not  controlled  by 
U.  S.  government,  131-133  :  of  officers,  157. 

RAILROAD,  as  post-roads,  246. 

RATIFICATION  of  the  Constitution,  58. 

RECOMMEND  measures,  power  of  President  to,  466-469  :  object  and 
extent  of,  468  :  practical  abuse  of,  468,  469. 

REGISTRY    laws,  295. 

REGULATION  of  commerce,  (See  Commerce.) 

RELIGION,  free  exercise  of  secured,  144. 

REMEDIAL  RIGHT,  included  in  obligation  of  contracts,  377,  388, 
396  :  confusion  in  notions  of,  396  :  distinguished  from  procedure,  397  • 
two  kinds  of,  397  :  what  included  in,  398  :  procedure  not  included, 
398,  399  :  cases  illustrative,  399-403  :  deprivation  of,  403  :  effect  of 
particular  laws  modifying,  4  03-413.     (See  Obligation.) 

REMEDY,  confusion  in  notion  of,  387  :  included  in  obligation  of  con- 
tracts, 388:  embraces  remedial  right  and  procedure,  397:  laws  affect- 
ing, 395-413. 

REPRESENTATION,  in  Congress,  how  apportioned,  122-124  :  effect  of 
slavery  on,  123,  124:  effect  of  emancipation,  124,  125:  different  plans 
for  basis  of,  125. 

REPRESENTATIVES,  in  Congress,  elections  of  controlled  by  Con- 
gress, 131  :  qualifications  of  electors  of,  controlled  by  states,  131,  132  : 
qualifications  of,  137  :  terms  of  office,  137 :  rules  governing,  138  : 
compensation  of,  140  :  privileges,  140  :  disqualified  for  certain  offices, 
140,  141. 

REPUBLICAN  form  of  government,  guaranteed,  131,  133,  134:  — 
power  of  Congress  in  respect  to,  133:   what  essential  to,  133,  135. 

RESTRAINTS,  upon  government,  (See  Limitations.) 

RETROACTIVE  laws,  330,  334,  335. 

REVENUE,  (See  Taxes.) 

REVENUE  BILLS,  originate  in  the  House,  139  ;  amended  in  the  Sen- 
ate, 139,  140  :   English  rule  concerning,  140. 

REVOLUTION,  American,  nature  of,  31  :  work  of  the  nation  and  not 
of  the  separate  colonies,  34-37. 

RIGHTS  distinguished  from  capacities,  345-347 

ROADS,  power  of  Congress  over,  246. 

ROMAN  jurists,  description  of  public  law,  2. 
37 


578  INDEX. 

SANCTION,  required  for  constitutional  law,  SO,  81  :  kinds  of,  81  :  kinds 

applicable  to  official  persons,  96,  97. 
SAVIGNY,  description  of  public  law,  2. 
SAXONS,  the,  government  of,  103-105;  —  elementary  principle  of,  103, 

104:  ti things   among,  103:  shires  among,   104:  influence   of  upon  U. 

S.  government,  104,  105. 
SEARCHES,  unreasonable  forbidden,  144:   warrants  for  required,  144 : 

importance  and  effect  of  these  rules,  i .-,;;.  i.vi. 
SECURITIES,  of  U.  S.,  not  taxable  by  states,  190,  194  :   what  are,  269  . 

counterfeiting  of,  269,  270. 
SENATE,  idea  of  based  upon   local    self-government,  121,    122:  execu- 
tive and  judicial   powers   of,  115  :   how  composed,   130:   how  classified, 

130  :   powers  of  to  govern    itself.  138  :   special  rules  for  government  of, 

138,  139:   power  over  revenue  bills.  139, 
SENATORS,  how   chosen,  130  :   how   classified,  130:  vacancies   among, 

how  filled,  130  :   qualifications   of,  137:   terms   of  office,    137  :   compen- 
sation  of,    140:  privileges    of,  140:  disqualifications  of,  140,  141:  are 

not  "  civil  officers,"  481. 
SLAVERY,  amendment  abolishing,  76  :   legality  of  this  amendment,  76- 

79  :  effect  of  on  representation,  123-12.3,  131-136  :   effect  of  abolition 

of  on  representation.  134-136. 
SOLDIERS,  quartering  of,  144,  153. 
SOUTH    CAROLINA,  first  constitution   of,  37:  nullification   ordinance 

of,  85. 
SOVEREIGNTY,  political,  nature  of,  and  where  resides,  4,  5  :  who  may 

exercise,  5,  6  :  not  subject   to  law,  8  ;  meaning  and  description  of,  27- 

30  :  voluntary  surrender  of,  39. 
SPEAKER,  of  the  House,  how  appointed,  136. 
STATE,  the.  essential  feature  of,  4. 
STATE    BANKS,  power  to  emit  bills  of  credit,  205. 
STATE    RIGHTS,  meaning  of,  distinguished  from  sovereignty,  100. 
STATE    SOVEREIGNTY,  theory  of  the  Constitution,  the  complete,  24, 

25  :   the  partial,  25,  26. 
STATES  of  the  U.  S.,  the,  are  not  nations  and  not  sovereign,  31  :    when 

may  interpret   the  Constitution,  86,  87  :  source   of  their   powers,  100: 

limitations  upon,  349-413  :  grants  by,  352,  354  :   laws   of  which  impair 

obligation   of  contracts,    389-413  :   insolvent    laws    of,  392-395.      (See 

Commerce,  Taxation,  and  other  special  heads.) 
STAY    LAWS    and    appraisement    laws,  effect    of  on   obligation  of  con 

tracts,  405-409  :   what    are,    405  :   when    invalid,  400,  405-409  ;   U.    S. 

cases  relating  to,  405-407  ;  state  cases  relating  to,  407,  408. 
STOCK  of  U.  S.,  not  taxable  by  states,  191-194. 
STOCKHOLDERS,  in  national  banks,  taxation  of,  193,  191;  in  corpo 

radons,  laws   changing   their   liability,  how  affecting  obligation  of  con- 

tracts,  ?,'.)■>. 
STORY,   his   theory  of  the    Constitution,   23  ;    opinion    on   interpreting 

the  Constitution,  84. 
STOWELL,  Lord,  on  piracy,  274  :  on  war,  287 


INDEX.  579 

STREETS,  assessments  for  opening,  161. 

SUFFRAGE,  right  of,  not  defined  by  Constitution,  132  :  not  essential  to 
citizenship,  132,  133  :  qualifications  required  for,  132,1.3:3;  universal 
not  necessary  to  a  republican  form  of  government,  133;  as  regulated  by 
Missouri  Constitution,  34?  ; — tins  regulation  valid,  348  :  a  privilege, 
348. 

SUPPORTING  an  army,  what,  204. 

SUPREMACY,  declaration  of  in  the  Constitution,  66,  67. 

SUPREME  COURT,  constitutional  provisions,  495  :  original  jurisdiction 
of,  517:  appellate  do.  of,  517:  power  of  Congress  over,  517.  (See 
Judicial  Powers.) 

TANEY,  C.  J.,  his  theory  of  the  Constitution,  26  :  on  interpreting  the 
Constitution,  84. 

TARIFF,  power  of  Congress  over,  167,  187. 

TAXES,  power  over,  175-198  :  provisions  relating  to,  173,  174  :  power 
of  Congress  over,  167,  175-187;  —  limited,  174-176;  —  methods  of 
exercising,  177-181  ;  —  extent  of,  181-187  ;  —  what  embraced  in,  180, 
181:  kinds  of,  176,  177:  direct  and  indirect,  177:  capitation,  177: 
appropriation  of  money  raised  by,  186,  187  :  stamps,  183  :  on  judicial 
proceedings,  184-186:  power  of  the  states  over,  187-198;  —  implied 
limitations  on,  188-195;  —  express  do.,  195-198;  —  subordinate  to 
powers  of  Congress,  188-190  ;  —  not  extending  to  property  and  instru- 
ments of  U.  S.,  190-194  :  powers  of  Congress  and  states  compared, 
194  :  power  to  impose  taxes  on  territories,  811. 

TENURE  of  office  bill,  440. 

TERRITORIES,  power  over,  304-318  ;  —  provisions  relating  to,  304, 
305  :  proprietorship  in,  305-309  :  government  of,  309-318  :  during  eon- 
federation,  306  :  cession  of,  during  confederation,  306,  307  :  acquisition 
of  new,  307,  308  :  right  to  acquire  new,  308  :  use  and  disposition  of, 
309  :  methods  of  exercising  power  over,  309  :  Bill  of  Rights  applies 
to  government  of,  311-313,  317  :  whence  power  to  govern  derived, 
313,  314  :   taxation  of,  311. 

TEST  OATHS,  321-329,  340-348. 

THEORY  of  the  Constitution,  importance  of  correct,  20,  21  :  complete 
national.  21-23  :  complete  state  sovereignty,  24,  25:  partial  state  sov- 
ereignty, 25,  26. 

TREASON,  power  over,  276-279  :  what  constitutes,  277  :  under  the 
common  law,  27  7,  278  :  punishment  of,  278  :  what  included  under,  279. 

TREATIES,  nature  of  President's  power  to  make,  115  ;  —  and  of  Sen- 
ate's power  over,  115:  acquisition  of  territories  by,  308:  power  to 
make,  448-455  :  Congress  has  no  power  to  make,  448  :  kinds  of  possi- 
ble, 448,  449  :  kinds  of  not  possible,  449  :  operation  of,  450,  451  :  those 
which  execute  themselves,  450:  those  which  require  legislative  and  ex- 
ecutive acts,  450,  451  :  legislative  powers  derived  from  this  function, 
452-454  :  cases  arising  under,  511,  512. 

TRIAL  by  jury,  when  required,  145  :  expediency  of,  154,  155  :  not  neces- 
sary to  due  process  of  law,  157-159. 


680  INDEX. 

TX THING,  the  Saxon,  nature  of,  103. 
UNIFORMITY  of  indirect  taxes,  what,  183. 

VACANCIES  in  office,  power  of  President  to  fill,  435-437  ;  —  to  create, 
436,  437. 

VALIDITY  of  statutes,  where  courts  can  determine,  97,  98. 

VETO  power  of  President,  111-114:  compared  with  that  of  British 
Crown,  112,  113:  when  maybe  used,  113  :  discretion  in  using,  113, 
111  :  does  not  extend  to  proposed  amendments,  114. 

VICE-PRESIDENT,  how  chosen,  126,  127  :  qualifications  of,  137  :  term 
of  office  of,  137. 

VIRGINIA,  first  constitution  of,  38  :  resolutions  of  1786  calling  a  conven- 
tion, 53  ;  resolutions  of  1798,  85. 

WAR,  what,  286  ;  can  exist  before  declared  by  Congress,  283-288  ;  civil, 
nature  of,  284-288  ;  duty  of  President  when  a  foreign  or  civil  war  is 
commenced  against  the  U.  S.,  287,  288. 

WAR  POWERS  of  Congress,  281-304  :  provisions  concerning,  281,  282  : 
to  declare  war,  282-288  :  to  grant  letters  of  marque,  288  :  over  cap- 
tures, 288-291  ;  —  why  vested  in  Congress,  289  ;  — what  included  un- 
der, 289-291  ;  —  confiscation  in  a  civil  war,  290,  291  :  to  raise  and 
support  forces,  291-295;  —  restriction  upon  appropriations  for  army, 
291  ; —  reasons  for  this  restriction,  292,  293  ;  —  what  included  in,  293, 
294  ;  —  how  exercised,  294,  295  :  to  govern  the  forces,  295-297  ;  —  not 
restrained  by  the  Bill  of  Rights,  295  ;  —  what  included  in,  296  ;  —  how 
exercised,  296,  297;  over  the  militia,  297-300;  —  partial  and  incom- 
plete, 297;  —  while  in  actual  service,  298;  —  to  provide  for  calling 
forth  when,  298  ;  —  statute  of  1795,  299  ; — jurisdiction  of  the  states, 
299  :  of  conscription,  300-304  ;  —  statute  providing  for,  300  ;  —  cases 
arising  under,  301-303;  —  extent  of,  303,  304:  analogous  to  taxing 
power,  303,  304  :  involve  the  power  to  acquire  territory,  308,  309 
Congress  has  no  power  to  wage  war,  470,  471  :  to  suspend  the  writ 
of  habeas  corpus,  473-475  :  no  power  to  establish  martial  law,  476. 

WEBSTER,  Daniel,  his  theory  of  the  Constitution,  23. 

WEIGHTS  and  measures,  power  of  Congress  to  regulate,  263,  264. 

WITNESS,  no  one  need  be  against  himself  in  criminal  trials,  144,  155  : 
accused  to  be  confronted  by,  145,  154. 


k>t(> 


)}  frit- 


v/MBAIN 


wvaaiHv> 


*owm\nv 


otjnv-su;         % 


yx       <*UIBRARY0, 


\ommti^ 


WlMJNIVERtyv 


^ylOSANCElfj> 


"fySMAlNIHlW 


^UIBRARY^ 


^OillVDJO^        ^ 


.^0FCALIF(% 


^      y0Aavnain^ 


.\V\E-UNIVERS"//> 


<Til33NV-Sm^ 


^•lOSANGELfj^ 


"%3AIN(l-3ttV 


^OF-CALIF0fcfc        ^ 


is 


^lOSANCFlfj> 


"^/hhainmiw 


«$UIBRARYQc         ^l-LIBRARYOc 
£?  1   tr-'  ^     £? 


aOdlTCHO^        ^OJITVD-JO^ 


AWE-UNIVERS//, 


.   o 
<Til30NVSOl^ 


v^lOSAUCElfjV. 


%a3A!Nfl'3\\V 


^OFCAIIFO^       ^OF-CALIFOR^  ^EUNIVERty 


v< 


^Aavaaii^      y0AavaanT^ 


o 
<TJl33NV-SOl^ 


It         ^UIBRARYQc 


^        ^OJIIVDJO^ 


,\\\EUNIVER%_ 


<TJl30NYSO^ 


v^lOSANCElfj^ 


"%!3A!N[V3ttV 


^UIBRARYQc 


^/ojiwdjo^ 


%        ,^0FCALIFC%,  <AV\E-UNIVERS//j 


^      ^Aavaan-^ 


^tjmnv-sov^ 


^IflS-ANCELfj^ 


"%3AIN(V3V\V 


^0KALIF(% 


^4     £ 


y<?AaViJ8ll^        y< 


vvlOSA^Elfj> 


"%3AINIl-3t\V 


^ILIBRAK 


^■LIBRARYfl* 


^/OillVDJO^ 


^OJITVDJO^ 


\WE-UNIVERS/a 


o 

<tfl3DNV-S0V^ 


^       ^UJS-ANGEL&u 


,^0F-CALIF0% 


^0KAIIF(% 


^ 


.5»E4!NIVER%       ^5 


"t/Aavauii-iv- 


''VAiJVGdll  H" 


jjijjhv  iui  - 


■'jainimi  inj 


.\WE-UNIVERS//, 


^lOSANGElfj^ 


^rjlWSOl^ 


"%3AIN(V3W^ 


lilMMUHiIunmi REGI0NAL  LIBRARY  FACILITY 


AA    000  857  040    o 


& 


AWE-UNIVERS/a 


^•lOSANGElfj^ 


^OFCAllFOff^ 


^OF-CALIF0% 


<rinoNV-soi^"     ^/mainihw^        y<?A«vaaii-v^      ^ahvhhih^ 


t 


^M-LIBRARY^         ^UIBRARYQc 


^ojuvjjo^     %ojnv3jo^ 


<\V\E-UNIVERS/a. 


^mmys& 


vVvlOSANCElfj> 

if  — 


h\w\w 


^OFCAIIFO/?^       ^OFCAllF0fy> 


^Abvaan-^     ^amir^ 


^EUNIVERS/a       ^lOSANGEifj> 


^MNV-SOV^        %|]AINIHlfc 


6> 


^EWIVERS//, 


sVlOSANCELfj> 


^UONV-SOl^         %^AINa3\\V 


^•IIBRARYQ^       ^UIBRARYQr, 


^OJIIVJJO^       ^OJIWD-JO^ 


^E-UNIVERS/a        ^vlOS-ANCElfj>  ^.OFCALIFC%,        ^OFCALIFC% 


<Tii30NV  S01:^         "%J3AINIH^ 


y< 


y<5AaVaaii^      y0ANvaaii-vNN 


<0 


^UIBRARYQ^ 


^•UBRARYQ^ 


^MMIIVJ-JO5^ 


AWE-UNIVERS/a 


o 


^■lOS-AMCElfj> 

ft:      ■*"**■ 


^mmm-i^ 


^0F-CALIF0% 


^OKAllFOftfe, 


& 


\WE-UNIVER5/a       ^lOS-ANCElfj> 


